relates to the various locations that was evaluated by at&t, i have to rely upon at&t's comments specifically because my understanding has been they have been working with the community, they have provided statements that they've been working with the community and there has been meetings with the community. >> you have been aware of the concerns raised by the appellant with respect to the location and so what i'm trying to understand is whether the department took into consideration other alternative locations and found those alternate locations not preferable to the one ultimately where the permit was ultimately issued, the site at issue. there is sm what of a burden in my view of the department to make an assessment as to whether alternative -- especially when you have an

appellant is voicing as well as community members voicing objections to the site, so what -- you know, it troubles mre to hear that it would be driven by at&t rather than the department. >> that is part of the evaluation but we must recognize 22nd value except for this particular location is primarily residential, these are 25 foot lots with garages on pretty much every property so the only realistic placement, it's at either intersections. >> so, are you saying the department undertook that assessment and determined that this was the most preferable location? >> yes, we did, because again, if we go to lincoln, all the way to the corner before you could potentially find an area at the corner where there might be a blank wall that would be placed which would not be

obtrusive or go all the way up to juda which is more than 300 feet away and that creates a different issue for the placement of these boxes. >> okay, thank you. >> thank you. >> commissioners? >> alright, i have a question, i almost forgot. am i correct there's no pending application for outdoor seating for the donut store? >> you're correct, the first time the department was made aware of it was from the brief submitted to the board. >> commissioners, the matter is submitted. >> okay. anyone want to start? >> i'll start. i think, you know, what i was trying to get to with the question is i didn't see a process that was clearly

defined, and i'm not looking forward to hearing 700 appeals as this goes across the city and we have already seen at one point a huge waive of appeals of the telephone boxes. i wasn't satisfied with the answers from both sides, meaning the permit holder and the department on what drove the analysis as to whether this was the only appropriate site, and i was also not convinced when i heard that -- without a lot of detail that because there was an objection on the first site, they go to a second site. well, there's an objection here too. the quality of the objection may be different, you know, in

terms of between the loading zone versus what looks like to be a relatively blank wall area, however, the objection is as real as ever and i think that, you know, there needs to be something that provides a more definitive definition from the process that is in the mou and in the order to the point where they can say definitively by the department that this appears to be the only logical site. so, i'm not convinced that that was what occurred here and i'm not prepared to support the permit. >> any other comments? >> well, i mean, i guess i disagree with that. as i read the order, dpw order

180502, there was a finding that there is no evidence in the record that there was a more suitable location for the smf, so that leads me to believe that there was some consideration of other suitable locations, counsel for the permit holder has stated that there was an extensive search in this area for a more suitable location, but because of the requirements of the technology, this was the only place where it could be placed, so i actually don't see anything wrong with this permit and i would actually vote to uphold it based on dpw's findings in that order. >> i would tend to concur with commissioner hurtado. >> as may have been noted from

my questions, i don't think just speaking to the concerns raised by the appellants on note, i don't think there's a notice issue here, this is a de novo hearing and we haven't had an opportunity to hear everybody including the appellant. on the question of what commissioner hurtado raised and i appreciate commissioner fung's concern with respect to the process and i wanted to find out and i heard from the department that in fact this was the best preferable site, so for that reason and i'm echoing the comments of commissioner hurtado, i would find that that piece of the process was actually done properly. finally, it seems to me just on the merits that the parking -- it seems to me the concerns raised on the merits relate to

the parking and rather than the foot traffic and the curb, i mean the part of the structure that's problematic for people walking is going to be remedied. we heard that it was represented by the record that that's going to be ground down for the lip to create issues for people on foot, it's going to become a non-issue and that gives me some assurance, but the parking, it could be a bunch of shrubs there that prevent people from coming in and out from my view, obviously it's not an attractive cabinet but we also heard from counsel for at&t that they're willing to make it a little bit better looking with some foliage there, so i would concur with my co-commissioners and vice-president. >> my concern really is that i

believe it might be that the best location, i'm familiar with the sunset and i have donut from uncle benny's donuts, and just like the food cart and just like the food truck, i believe that evidence of the location, i believe that that probably is a good location, but we're taking the word of the vendor and it may be something like commissioner fung has suggested, that the procedure, so that there is a radius so it shows some type of written evidence that alternative locations were looked into and it sets a precedent that we might be hearing much more of these cases unless something like that is taken into consideration, and so for that

reason, i am leaning towards denying the permit as well. >> imd make a motion to uphold the permit based on the findings in dpw's order. >> we have a motion then from commissioner hurtado to up mold -- uphold this permit as stated in the dpw order. >> do you need the order number? >> no, it's fine. >> okay. >> on that motion to uphold, commissioner fung? >> no. >> president wong? >> aye. >> vice-president lazarus? >> aye. >> and vice-president honda? >> no. >> this permit is upheld on that basis, thank you. .ing and i would like to take a

short break. >> street appealing a let over determination dated january 17, 2013 addressed to marsha garland regarding a liquor distillery and event venue is a basis of the ground floor of the subject building. we'll start with the appellant, please step forward, thank you for waiting. you have 7 minutes. >> good evening, members of the board, i'm michael yarn, people of building, we're a real estate development company and we happen to be the master tenant of the propertied, 535

green street other than known as the sausage factory, this is a historic resource nr the north beach area, in a minute, i have some images that i wanted to share with the members of the board, just of the property. i want to emphasize, the only issue in the letter of determination that we are disputing is really one phrase, and it's the finding in that letter of determination that the subject property was "last occupied" by a basic neighborhood sale or service, i.e., a retail establishment, that's the only issue that we have of that letter of determination. i want to emphasize the reason that we are concerned with that finding in the letter of determination that in the north

beach ncd, special use district, if a property once had a neighborhood serving retail use, it may never have a full restaurant use in the future. and the public policy reason i believe for that restriction in the north beach ncd is to obviously prevent restaurants which are high rent paying from displacing neighborhood serving retail uses like laundromats or hardware stores or things like that, so i believe is the public policy reason for that interesting little bit in the code, so again, the only issue we have was the zoning administrator's finding that we find to be factually inaccurate that this building was last occupied by a neighborhood serving retail use, so a little bit on that, the sausage factory was opened to much fanfare on september 7, 1948.

this is a historic card announcing its opening, the factory, many of you may know it is on green street street, it's a beautiful 1940's building. please refer to the overhead, thank you for the original announcing the original opening in 1948. >> i can't see it. >> okay. >> i will just -- while i'm waiting for that image, i'll just continue my presentation. okay, i'll stop my presentation. >> [inaudible]. >> thanks. >> thank you. thanks. some important history because

this is a story about history, the born december to*e sausage factory was the born gus to*e market which was established in 1920 by *f by the casisa family on a 3 thousand dollar bank loan, the family started manufacturing sausage in their storage just around the corner and they built this factory in 1948. if you look to the overhead, that's a picture of the factory, in an article in the journal of "meat" december, 1948, celebrating the opening specifically references the layout of the building and specifically references the main floor noting that at the front of the building, near the entry way, there was a men's locker room that services the rest of the factory next to that is the inspector's office and beyond that the actual where the meat is made.

nowhere in the plans nor in any of the history or any of the facts -- we went back and read newspaper articles and went and looked at building permit plans, we didn't know there was any indication that there was an ancillary retail space on the site. as the za letter speaks about, the factory was operating illegally, it needed to replan its floor area, that never happened to our knowledge and i want to point out that in 1979, a permit was filed if you can look to the overhead, a permit was filed to remodel the frontbacker front area of the store of the factory into a store and you can see here, i'm putting my finger on it, that little room that's green street here, that room right there at the entrance still says locker room and the permit although it was filed to convert the locker room to a store was never acted

on and the permit was cancelled, we see a history of this, so yes, there were permit records that suggest there was a "retail use" here but none of the factual evidence supports it, so at the end of the day, we're left with the situation where factually, it appears that this building, this sausage factory was never used as a retail store, certainly not a neighborhood serving retail store, why are we interested in this, the interest is build inc., the master tenant is looking to bring back sausage making and a salumaria to the site, they want to pair that with a full service restaurant, full service restaurant is what's going to underwright the cost, we are excited about revitalizing this building, brings it back to its original historic use admittedly with a full service restaurant and that would include a bar of course and because of this one

finding in this letter, we're concerned that we won't have the right to go for a conditional use to seek ultimately approval of a full service restaurant with sausage making and a saluma raoe ya on the site, the site was never used as a market and retail site, if it's interpreted to be last occupied as such use, we will never be able to seek a conditional use approval for the restaurant. thank you. >> thank you. >> okay, thank you. is there a representative here for the determination holder? if you would like to speak, you have 7 minutes as well. >> my name is marsha garland and i'm the one who sought the letter of determination and i

don't know what to say, i have a very amicable relationship with the master leaseholder and i did tell the sublease holder that i was -- who is here, san teen noe derose who is also a real estate broker that i was looking for this letter of determination, and i have no argument with it at all. i was surprised about the restaurant interest particularly because i'm fully aware that in north beach, it's virtually impossible to get a liquor license but you have to go with a restaurant. so, you know, i just came tonight to observe really. i have no real serious input other than historical. >> thank you. and is there anyone here representing the subject property owner who would like to speak?

>> the casisa family is not present, but as the master tenant, they've authorized us to speak on their behalf. >> just so that i'm clear, ms. garland, you are taking the same position as the appellant here? >> i'm not -- no, i'm really -- i disht's very complicated. they represent the property owner, okay. the man died a year ago, the wife is very elderly. i have never met them and i occupy the top floor where i have my office and a roof garden, and that's nothing -- and i pay my rent to this man who is the real estate broker. i have no objection to them appealing it whatsoever, i feel that's perfectly within their

right. i represent -- at that time, i was representing a client who was interested in pulling a distillery in there for liquor, and i'm not currently on their payroll. i thought it would be a very good use for that building and since it is light industrial, and i got the letter of determination from scott sanchez, the zoning administrator, indicating that it could be doable with a certain way of handling it, so then i heard about this appeal and i was surprised. >> okay, so you have no objection to the appeal so you're fine with whatever -- if that appeal were to be granted? okay, i just wanted to be sure. >> yeah. >> mr. sanchez? >> thank you, and good evening, president woningsinger, members of the board, planning department.

>> no permits for the use. otherwise there is really no building permits on the

subject property. there was a letter of determination for a liquor store and will take up some time to wrap up our collective heads around that and we did find that it could be a lot with certain limitations and one of the limitation we noticed is that they can have -- areas with a full bar, we want to note out that in section 780.3, there are limitation for new bar and restaurants. the guidelines for that, we also have another category called limit restaurants and can serve all sorts of foods that you like. so, that they can still seek an authorization for that. given the special use district we are

applying that you cannot locate any new bar or restaurant in a location that was currently or last occupied by a service or by permitted lease in section 722 or a vacant space last occupied by a permit common use under 722. in reading and applying this provision of the planning code look first at subsection one and is this currently or last occupied by basic sales service. i acknowledge the history here is very murky but i think we have to go by what the legal use of the property is. what the c f c was received for and there is no since that date to my knowledge and that is it was a retail use which would be in a category basically of sales and service and promotion materials

that were provided to the department showing the property for lease shows this advertised as a retail space. there is no reference of this being a restaurant or any other space previously. we are looking to these materials and how to evaluate the planning code and there is a reasonable interpretation that the last legal use certainly if we have a more broad interpretation of that and there is not a serving use, then this code no longer applies to them we would be encouraging to people who change their uses so they can convert to a restaurant use. so that seems like a reasonable interpretation on our part. there is subsection the, when we didn't get in our letter of determination to the board does speak to a vacant space. that

is for a period of 18 months. this contemplates a property that has been vacant. you can also already that this the building is vacant and it has no known last legal use because it's never been operated as a retail. you can also apply this provision of the code as well and say that a vacate space should not be converted to a restaurant. the intent of this was to make sure that sales and service uses are not converted and converted into restaurant uses but also those spaces which are vacated which may at one time been a restaurant. if they are vacated for more than 18 months, it can't be

converted back to a restaurant. it's not only looking to preserve the existing but also to create the opportunity for new basic neighborhood sale and service uses because those are uses that are scene -- seen as not being adequate use because of bar and restaurant. >> i have a question, if the place was not used, what's the different? >> even if you have a place that is operated as a restaurant, if it's vacant for more than 18 months, then this provision of the planning code provides that you can't plan a

code. >> what's the reason for that? >> to allow more opportunity for neighborhood serving uses and that's the the intent when this was passed in 2008. >> you listed four different types of zoning controls in north beach district. were those in existence at the time? >> no. none of them would have been. at the time it was -- we are still under, it probably still a commercial zoning district. there is 7 zoning districts and now we have more than a hundred. so at the time -- >> going to the argument billion -- of how the idea is,

it's legally something else but those zoning controls no response place and applicable today are not applicable then. i think that goes against your argument that it would basically generate -- or encourage property owners to illegally do something else to open a restaurant. that wasn't at issue at the time. the retail use was sort of classified in a c f c that it was allowed to do? >> i think my concern is the appellant's argument is that we should look at not at the last legal use but the last use. so whether that be legal or illegal. so my concern is that

applying that standard of saying, went, the last use was illegal, so, we are going to say that you can put a restaurant in that location. >> but that illegal use was going on for decades. it's not that they did an illegal use to get around the current zoning controls. >> i believe the history of this, the appellant is you are surmises that they allow the factually to be illegally created and that operated illegally but my appellant says we should be interpreting this as the last use regard. >> thank you. i get it. >> just to follow up, isn't the abandonment issue, does that almost trump everything else? >> it could.