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. we were looking at this and thought it was a reasonable application to look at the law and go back to the last legal use because the history here is so convoluted and we are going to go back to what's on the c f c. but a secondary argued that says in paragraph two, it refers to non-conforming uses if a principle service, then you can't go back in that location. part two is a vacant space for permitted conditional use and that deals with all the other, that's basically range use type

you have, permitted uses, conditional uses and non-conforming uses. >> okay. >> thanks. >> mr. sanchez. you found the cfc in your records, how about the original permit app? >> let's see. i will look for that but i can -- >> if you will look at that during your break. >> other people who would like to speak under public comment. please raise your hand? okay, please step forward.

>> good evening. my name is jeffrey regary. i live in the building next to the right. within 150 feet of that and the salami factory is a wine bar, cafe sports, pizza, and cafe, cafe, chubby noodle, restaurant and cafe romo. all of which serve beer and wine. i'm concerned about the noise levels. in the back of my building there is 21 trash

containers that go out daily. beer serving would be a lot more noise. parking issues are worsening as we add to that street. everybody feels lucky of parking within six blocks. even though i have lived in this apartment 26 years, i have been pushed and shoved and had a concussion trying to get into my apartment all from highly inebriated patrons of these establishments that are already there. i have seen the police presence really increase. i know that everyone knows the kind of mayhem that happened after the giants won a game. well, that's the kind of mayhem that's becoming green street and north beach. they have a wine bar on the other side of

my building from 10 a.m. to 2 a.m. blasting to 95 decibels. i'm really concerned about safety, about more inebriated extremely inebriated people on green street where i have also had to clean blood off my front door and sidewalk after people have been in fights in that neighborhood highly inebriated. i think that green street is saturated. thank you. >> thank you. >> thank you, any other public comment? okay. seeing none we'll start with rebuttal. mr. yarney, you have three minutes. >> thank you very much. i have one general comment. i definitely hear the gentleman's concerns, the public speaker and i want to point out to the board members is that there is a conditional use process. if we are in the position in the future to submit an application

for a full service restaurant it would go under a c u p process and that's the process for affecting those negative -- i would suggest it's not applicable in this circumstance. that section effectively if there was the neighborhood retail use, we can't find any record that there ever was in this building. that's the first thing . if clause one does not apply and this wasn't done to allow us to do a restaurant. this was a family that makes sausage. this was built in 1948. there are articles that describe this sausage making. this was not devised to allow a restaurant. it's just the history of the place. the second clause of the zoning reference is a space last

occupied by a non-conditional use or a permitted use. the sausage factory was not a permitted conditional use. it never was. nor was it a non-conforming use. a non-conforming use under the planning code is usually implies a legally non-conforming use. in other words use that preexisted or prior to a code change that makes that use then illegal. it then becomes non-conforming. an illegal use is a use that was not allowed at the time it was put in place or later because it was abandoned and put back and illegal use is an illegal use. i would suggest to the board that that section of the planning code does not apply. further more, i don't believe that the public in anyway is harmed by simply acknowledging the facts here that the code

says last occupied by. the reason that matters is this section of the code is there to protect against the loss of neighborhood serving retail to hire paying restaurants and bars. i would suggest and appreciate the administrators diligence that neither the policy or the law are violated by altering this finding in the letter of determines and also reiterate the only reason we are here is to dispute that finding, really one sentence in the entire letter that states effectively that the building was last occupied by a neighborhood serving retail use. we believe that to be in inaccurate. thank you. >> you have 3 minutes of rebuttal. do you care to use it? no? okay. mr. sanchez. >> thank you, with the planning

department. commissioner fong in response to your question, i could not locate any additional formation -- information from the building permit. both did very clearly indicate that the building permit application was approved by the department as a retail store and actually that was just handed a copy of the original permit. i put it on the overhead which shows the retail store which was on the letter which was approved and what perceived the cfc application. getting into this question about how do we apply sections 780.3 and i believe that a reasonable interpretation is a question that in making this determination in interpreting

last use to be the last legal use could possibly be the only legal use as a property retail store and again i have concerns about the implications of having a broad interpretation of last use and think that it could very well encourage people to encourage a legal use something that is not a serving use and it wasn't last occupied by a neighborhood serving use therefore we can convert to a restaurant. i think that would have a possibility of being the next item that you can see at the board. i would have very serious concerns about the application of that. so that is why we came to the determination we did. i feel it's reasonable and did noter -- in my discretion. with that i'm available for more questions. >> i have a question. so, can

you explain the difference between non-conforming and illegal? >> yes. i would agree with the appellant when the code is referencing a non-conforming use is referring to a legal non-conforming use. you have permitted uses which is permitted under the current zoning district. they don't require any other actions. you have conditional uses which require a planning commission hearing, conditional authorization, you have uses which are non-conforming, legal non-conforming uses which are uses which do not comply with the current zoning requirements. when they were drafting this legislation they were including all of these possible scenarios. in this case the appellant is arguing that there is no legal use. this is a ghost property of some sort that there was never a legal use of this property. they did receive a cfc for a

retail store. if the argument is that somehow this was never legal, their concerns about other requirements in the planning code. there are slides in the planning code and particularly use sides in the north beach. did it ever have a legal use size. this is what you can prove in the north beach zoning district. the only legal use on the record is a legal use. that's how they advertise. >> okay. i better stop using non-conforming in my disclosures for now on. >> how does interpreting an illegal use. how does that work with this code intention? >> i think the issue is reading

part one and two. the intent is saying that if you have a space that was last occupied by a basic sale or service, we don't want that converted to a bar or restaurant. >> it was never that that's why i'm having difficulty because it was never that. >> the only other legal use on that record, this is a fairly unique case, but it does have a cfc and the legal authorized use as a building is a retail use. we approved it as a retail use and that's what it received the authorization to be. that's where our starting point. >> but, i think we are all acknowledging, you are acknowledging that it was never that. it was never a retail space in actuality? >> the appellant has surmised that it was a roust from a very

beginning. they wanted to have a factory and put a couple permits through. the one that said retail first, they put in a factory. at the time the public works went through property and said this matches the plans that we have which said as a retail use. that happened at some point in time because the final inspection is that for a final completion is an inspection of the property determining that it come applies with the plans. it received that. at some point it became something illegal, but we don't know when. it could have been the day after they got their inspection, it could have been a couple years. i think that every appellant has a reasonable argument that they maybe tried to intended to mislead the city from the beginning. it's legally a retail use under permit. >> it's under 300 feet. right?

>> yes. i guess i don't see how this protects neighborhood services. that's the bottom line. >> i think that's the second part of the provision which if you have an existing legal non-conforming use which a restaurant would be a permitted conditional use in the north beach, that if that's abandoned then you can't restore a restaurant to that place the second part of it is that over time you would have more spaces available for basic neighborhood sale and services uses. >> that is for a non-permit conditional use. >> which is the only type we have in the planning code >> but not illegal uses? >> we would say the legal use is retail because that's what the permit is for. >> okay. >> i understanding this is different. >> i think there is a little

bit of discomfort similarly in my thinking mr. sanchez based on what the title is leading towards. of which is the following. i understand how you arrived at your position and it a straight forward position by looking at the documentation there. the question in my mind is that when the special use districts legislation and the code changes that occurred in the north beach area for a variety of different reasons, the analysis and therefore implementation of proposed projects within that area to conform to that is really a process that would involve not

only the z a but the planning commission n this instance, your decision by including this precludes almost anything beyond that. and so, i do have a little bit of a concern there and how the policy basis for the legislation is now getting it's day in court so to speak. >> are you saying they do not apply for a conditional use. i think that's an important point and would highlight that, i mean, in conversation i had with the city attorneys office that one can apply for anything even if it's not allowed under the code. you can make an application for something and we can deny it. if someone makes a c u application and the

planning commission denies it, i don't know if that is beyond possibility. that this would preclude the filing of an application for this project on those grounds. >> except for the fact that if we take action on an appeal of your lod, then i think case law is going to prevent that from being the pertinent portion of any future decisions. >> i think what you are arguing though is that maybe the planning commission has the ultimate authority on that determination and i think that has -- >> on the board of supervisors on the appeal >> right. i don't know that any determination here would necessarily inhibit the planning commission from making a determination different from what i found in the letter of

determination. the letter of the determination on the project and these are interpretations on the planning code and how we apply it. i think there is a question that i would kind of hedge on to say that the planning commission could probably over turn my determination on this. >> i agree with what you are saying that it doesn't necessary, but the extent ating circumstance that it was clearly illegal even the zoning at that time 60 years ago and yet somehow through some process was received some form of legalization just because of what was put on the cfc. >> okay. thank you.

>> matter submitted. >> i must be getting old. we get easily confused these days. [ laughter ] >> you want to comment? >> i will give it a try. i'm sympathetic to the situation and the nuances is probably beyond what anybody wants which is 830 at night, but from what i'm hearing, i believe the zoning administrator was not left with an option given the way the codes are written and what he found in the files to issue this permit for a retail establishment. so i'm inclined to disallow the appeal and support the zoning administrator as not having abused this discretion. >> i would concur with that.

part of the me doesn't really want to but i think logically probably enforced to because all of us don't want to see an empty building. we want to see something develop there that can enhance not only that area but that neighborhood. i guess i'm in agreement because the z a really had no choice but to look at that documentation. >> i can actually go either way. i believe the za was correct in the decision because of the paperwork that he has. at the same time the legislation was from 2008, and this is a very unusual situation. and no matter what,

it is trying to get a cu on this is going to be difficult already. so i can go either way to be honest. >> i think the standard is the zoning administrator to use this as discretion. >> i'm going to move to deny the appeal on the basis the zoning administrator did not abuse the discretion. >> no error or abuse of discretion. on that motion to the advice vice-president on the basis that the zoning administrator did noter or abuse his discretion. on that motion, commissioner fong, aye, wong, tan oh, i'm going to vote no. this is 4-1. this l o.d. is

held on that basis. >> thank you, moving to item no. 7. appeal 015. the building inspection. the property is on lombardy street. 2013 to lombardy property company. comply with notice of violation no. 0212001 replace existing walls per plans landscape deck. this is on for a hearing today. we'll ask the appellant to please step forward. you have seven minutes.

>> good evening. my name is rod handling. in 1975 i purchased a building that had two flats and a small cottage as my home. i moved in and several years later i met my wife at our flat and we were married there and lived there until we moved a few blocks away to raise our family of kevin tert stan. we work with neighbor groups all the way back into the early 1980s on proposals for what is now 1380 greenwich. we are asking you tonight to revoke a

recent permit for construction on 1380 greenwich because the property owner is not identified on the permit, the kept of planning did not review and approve the permit application and we believe the very largel elevated deck encroaches on our 1877 rear lot cottage. these issues are related to building inspection and planning. we have worked with those departments to withdraw those appeals on exhibit d indicates since last november when we were asked to review a similar permit and we responded to the building department, the board of