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 one of the few cities in 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 wa