>> you know that it is coming in but it didn't come in. that is where i am, i am just trying to understand how you get in the door when you don't have it in the first instance? >> and that is the argument, i don't understand if that is what your department and your position and your practice and your policy is, >> i think that i read it earlier in the first statement inasmuch as i say the permit, it is just a review of the conceptual design, even though that section is in there, the last paragraph probably gives us the discretion to do that with regards to knowing that and based on a structural drawings coming in, all of the structural calculations it definitely is going to be caught, but possibly in this case, it may not have get caught but it would not be a rejection of a site permit in my opinion, nor most of the time the permit is the architectural design and the structure will be coming in on

all of the reports and i will bring it to the attention of the check because you brought it to my attention and i did noise it myself and in this case it did get missed but it is not something that would reject the project. >> okay. >> it is a document from a geotechnical engineer, i believe, stating that this building is, or does have slope conditions on a hillside. >> but, from my experience inspecting these things, i know that most of our designs here in san francisco were way out or probably over designed more than most. which is good. you know? >> okay. thanks. >> i have a question for mr. sanchez. >> as mr. sanchez approaches i would ask the people on the right side of the room to take a seat we have to keep that area open it is part of the fair code requirements. >> mr. sanchez?

>> planning. >> so, as argued by the appellant, there is a concern here that there is a defacto, demolition going on and the article that was cited to by the appellant and someone who from the public quotes the developer and the permit holder project sponsor as finding a way to get around the demolition. it seems to me, you know, how often are you seeing this... does this type of project notwithstanding the technical position that you are taking here, smack of a way to circomvent the 317 requirements? >> certainly when you have a rule or a requirement that sets a threshold for additional burden that designers will

design to meet that threshold. and so wherever the bar is placed that is where one will design to. and so i think that is what they have done in this case and said that they are meeting the letter of the law. so we are going by what is shown on the plans. certainly the board of appeals here in its hearing on this matter and considering all of the facts can consider items in that article and can consider the testimony by all of the parties here in making a decision. we are basing our decision on the plans that are given to us and that are there testifying to and this is what we are going to do and this is what they are going to build and that is what we are expecting them to build if they don't build that and if they exceed the scope, then we will have to review that and come in for a revision permit and may trigger the 317 requirement. >> and in your experience, in the planning department when you see the designs such as this one and you have the

evidence that has been presented to us today, understanding what sort of the spirit of the law as well as the technical components and requirements of it, is this something that is of concern to the planning department? where we see the people, i mean, at least from my, what i am seeing, it does look like an effort to circomvent what is otherwise required of tit >> it is something that we should not seek, i agree with that. i guess on a deeper philosophical level look at 317 and wonder if it is the best tool to achieve the goals of the city, it is cumbersome to implement and it is able to be exploited. certainly i mean that is, you saw that in the article. and i guess, you know, there are other jurisdictions which have different rules for additions. if the board of supervisor's goal was to prevent houses from

becoming mega mansion and from doubling in size, then section 317 could have been written to prohibt that but it does not. some municipality have if you add more than 500 square feet and you are above 2,000 or 3,000 then you pay, you pay an affordable housing fee. those are actually some of the more elegant solutions to the issue that we have here but we are implementing what the board of supervisors adopted and so we are implementing the letter of the law and we are doing that to the best of our ability in this case, they are meeting the requirements of the planning code. >> okay. >> so speaking of the law and legislation, i think, that mr., the architect, actually i don't know, is it santos? >> the reference, sorry, thank you. referenced legislation that is potentially going to pass? >> correct. >> for the buildings. >> could you tell me more about that. >> maybe the rectified... it is

something that is working the way through the process and land use on monday the planning commission is having an informational presentation on that tomorrow. and that is speaking to identifying buildings in the city that are soft story building. and these are sort of a lot of buildings that are like that. and actually pat (inaudible) could speak to that very well and he has been involved with that. and it is identifying these buildings that are residential buildings that are soft serve buildings and it could be residential over ground floor commercial or over garage, and when the ground story, because of the amount of openings, is creating what is called the soft story and it the seismic event it may shift or fall over and the idea is to strengthen those buildings so that it will not be demolished so the people don't get crushed or die in these buildings or also after an earthquake we will have the housing stock and we are not

living in the square like we did after the 1996 earthquake and i think that those are the goals of the program and we are working with the department of building inspection and the mayor's office is working on this as well. they are meeting it up actually. and to try to develop ways of reviewing applications in a stream line fashion to insure that people can make these important seismic up grades. >> and so the implications of the passage of that legislation, should it pass, is that the type of project that is being proposed or that is an issue here would be permitted notwithstanding the 317 issue. >> if the soft story is to have, i think that is where the structural engineer should come in. that the retrofit requirement is minimal. so they will not need to do a lot of work to secure the home, but they will be able to do kind of minimal amounts or secure the life safety of the building and to preserve the ground story there. it won't necessarily require,

like an entirement of foundation in all cases. >> there will be frames or other engineering. >> thank you. >> i am not an, engineer. >> and thank you and thank you for the effort. yes? >> just the statement that i made about the 100 percent of the foundation being replaced in this project, i have not seen the structural drawings what i shared is what i meant and what i meant to say is that in my experience as an inspector, most of those projects like this size you generally take it and put in a brand new foundation and mr. williams pulled out a letter in 2011 where he said that around 90 percent of existing foundation and walls will remain in place and mr. santos may want to speak to you, but my experience on these type of projects we don't see any of the existing foundation remaining it has to be taken out because it has to be taken up to today's code. the other thing about the demolition and the walls

remaining. the city departments with the codes and regulations and whenever planning approves something like this and the building department gets involved and we have this walls to remain in place. and then you have got structural drawings, where someone wants to keep the walls and it is seismic in the building, that is challenging for everybody, from the developer to the inspector because you are looking at old walls that have to remain and then, you know, sometimes there is dry rot, sometimes there are, and so this is a very challenging thing to do and we said earlier that we work very closely with the contractors to try to get them to suspend the walls. if you would not see it anywhere else and we struggle with it and this is san francisco and we have these laws and abiding by them. like we work with people on this issue. it is not someone, i don't think that this project you are going to see someone going in and tearing the building down and you know, throwing all of the lumber away, i can't see that happening. i am certainly expecting to see

new structural members, along with the old lumbar and floors and ceilings and walls which i generally have seen for years as an inspect or and that works. it is tough to do, but that is what you end up with. so as long as you are getting that picture. >> i think so. >> thank you. >> commissioners? the matter is submitted. >> i guess that i will start. >> okay. >> after going over the appellants as well as the permit holders briefs, thank you for supplying a whole weekend worth of work. i had quite a few concerns. also that it was being built on such a steep grade.

>> it dripped annually all year long and after doing, new foundation work actually improved the conditions of my neighborhood. i think that there is and mr. murphy and his family have gone through the process for six-plus years and i believe that the neighbors are going to make sure that he does what he does and does what he says. i feel no reason to delay any more.

>> primarily from the design and impact it is quite different from the procedural issues that have been the majority of the arguments being made. to me, to the proposed structure, starts when they (inaudible) approach to a down hillside which is very appropriate. it starts with a relatively low starting point, and at crown terrace street which is also very appropriate. the issue of what is a demolition or not, is in the calculations. it has been determined by the department that it is not a demolition. i look at it at code section as

no different than any other code sections, the people in a 40-foot high limit will sometimes want to build up to the high limit and they are going to want to use the exceptions in there for either penthouses or elevator structures or etc.. and it is just another requirement that one deals with. i don't see this as a defacto demolition given that both the planning and the building department have checked the details and yes, people do get it to a... i should not say the other word, the difference from the percentage requirement. and that is no different than what we do when they take it for a set back or any other planning requirement. the question of whether this house impacts the two adjacent neighbors, i believe that the enter face has been addressed

by the design. they tried to minimize the issue of direct openings of windows facing each other and i think that over all, i am prepared to up hold this site permit. >> i think that people probably gathered from my questions that i i am troubled by the evidence that was presented around the potential circumsvensing of the codes. but at the same time, i think that some of the comments by commissioner honda also make sense with respect to the neighbors sort of policing this project very tightly. i would not... i think that when i see what i believe to be evidence that suggests an abuse

or an exploitation of the laws that we have to live with and i think that this or the spirit of the laws. i find it problematic, and so i would not be prepared to up hold the permit. >> i feel the same way as president hwang. i mean, again, i think that it is troubling that this appears to be a defacto demolition to me. and it is persuasive to me that the former supervisor was here and who worked on this law and has an opinion about how it should be interpreted, and this differs significantly from it. so i would not vote to up hold

this permit. >> you want to entertain a motion? >> i will entertain a motion. >> i will move to up hold the site permit on the basis that it is code conforming. >> okay, if you could call the roll, please? >> we have a motion from commissioner fung to up hold this permit on the basis that it is cold conforming. on that motion president hwang? >> no. >> commissioner hurtado? >> no. >> vice president lazarus? >> aye. >> and commissioner honda? >> aye. >>

>> welcome back to the march 20th, meeting of the board of appeals. we are calling nine, 13-004, miyo ota doing business as mio ink, verses the department of building inspection, this on for 21330 fillmore street, protesting the issuance on january 7, 2013, to alan tan of a permit to alter a building, update the concrete foundation and replace the water damaged studs and 20 percent upgrade and cda entrance door, application number, 2013/01/04/7241. and we will hear from the appellant first. >> before i get started, i wanted to just pass these out before exhibits that you could refer back to in terms of how we... >> use the microphone. >> actually the board... >> okay. >> the board has to agree whether it wants to accept the

additional documents. >> it provides a list of stores. >> sorry, say that again? >> it is documentation of how i do my list of stores that will be exhibit no. 1. and the only exhibit. so i don't know. >> why don't you, explain it during your testimony. >> in deriving this, this is the actual, you have a copy of this, a catalog, with all of the addresses and stores that they named that are the u.s. stores. >> they are distributed now in their stores. >> okay. >> this is also... >> i think that your time is going to start here. >> okay. >> all right. thank you very much. good evening, board members. and staff. my name is miyo ota i have been a merchant on fillmore street

since 1978. my store is located at 2035 fillmore and it is an independent woman store retail clothing and accessories from europe, asia and the usa. my appeal permit was issued on 2013, for alterations to 2030, because the building permit is for a new retail store that will be located less than a block away from my business. the proposed store is a formula retail use for which the conditional use authorization is necessary. it is a (inaudible) based international chain of clothing stores with at least 18 usa retail establishments listed in either in the catalogs or sites or both. my statement refers to my original appeal refers to 13 physical stores in the usa. and which the permit holder now claims are only 8.

when i drafted my appeal statement i did not include the internet stores because it was only necessary to show that oska has eleven establishments. >> for purposes of argument, i will assume that oska had only 9 brick and mortar u.s. stores, however, they also have a worldwide network of internet stores including 9 in the united states. now, this is my list for exhibit 1. and this does not quite show all of this. the brick and mortar stores are listed on the left side and the internet stores are listed on the right side. you will notice that there are three pending stores, these again were listed on the

catalogs. and though they have back pedaled on that. the information about the 18 retail establishments is based on oska's only printed brochures and various internet postings as well as facebook listings. this osk a published information indicates that 9 of the u.s. stores are traditional brick and mortar stores, the related web sites indicates that it operates at least 9 internet stores in the united states. the primary website contains links to both stores and the internet stores. each physical store has a physical on the ground address, each internet store also has a 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