department based upon what the set up is, but the maximum capacity would be the 92 87 number. ~ >> so, one suggestion would say parentheses lower capacity set by the san francisco fire department. rather than potentially increased -- any potential increase might question the e-i-r. >> okay. is everyone okay with that modification? okay. the other difference that was just mentioned to me is that the site improvements and repair of damage in the entertainment commission version does not include the additional language that live nation, america's cup and the steering committee agreed to, to not pursue a permanent venue in the location, approximate size over the next 10 years. >> right.

you added that on and entertainment didn't include that in its -- that's right. >> and is that -- i mean, if they're going to put a further restriction on themselves, i think that would be appropriate. the commission at that time felt that that language was not something that they were necessarily in agreement with, but if this board feels something more restrictive -- i mean i think you have the latitude to add to these conditions if that's what you choose. >> why would your commission disagree with that if the permit holder is [speaker not understood]? >> i'm not sure that i can speak to their intentions. i can just speak to the outcome of what they directed for me to communicate to you. ~

it is -- >> okay, i got it, all right. >> i always wonder why the site is tied up that way for 10 years. >> live nation, yeah. >> but it is also interestingly, as i read it here, it seems to me that it's very specific. i mean, if you all in 10 years apply for an amphitheater approximate size, approximate in size, what if you wanted to make a billinger one? ~ bigger one? that wouldn't be excluded by your condition here. how about nothing? it doesn't fit -- bigger doesn't fit would be -- >> okay. that's the easy answer. >> the largest size in there is what's been built? as approved by fire code, yes. >> [speaker not understood]? >> no, i think for purpose of a permit i think it's best we not as a condition of permit state that they will not apply -- not

restrict their -- >> they're doing it on their own. >> yes, they can agree between themselves, but as a permit and the first amendment issue, i think it's best that we not bar them, if you will, from exercising their right to do something. they apply and update -- >> [speaker not understood] can't pick you up. >> i'm sawyer. i'm saying i think it best that the permit not restrict or prohibit them from applying for a future permit or change in their per met. >> potential interference of economic relations? >> or their rights. >> even if it's self-imposed. if you want to impose it on yourself, impose it on yourself. voluntarily. >> i hear it, okay. i'm just trying to line them up because the text is different. so, traffic and parking.

>> the language on number 1 on the entertainment commission brief that talks about the permittee must submit requests, in thinking it through prior to the hearing, it seems perhaps it would be better to say they may submit requests. they're not required to. and even if they choose to ask for an extension of a curfew, then they will have to ask for permission so that, not that they must extend the curfew -- >> it requires you to ask for a curfew extension. >> well, what if they don't want one? i think that's the director's point. >> [inaudible]. >> okay. so, i would recommend that the language be clarified that the police department have the approval authority, which is not spelled out in the entertainment commission brief. it just says that you have to request it of them, sfpd must approve.

submit their request to sfpd, but i'm suggesting perhaps you consider that the "may submit request" for the sfpd to put aside whether or not to approve. >> okay. can you remove the steering committee from that [speaker not understood]. >> sir, i'm sorry, you're speaking out of turn. i'm happy to hear you if you could stand up and speak into the microphone. i think your input is appropriate right at this moment. i'm concerned with the specific language in point number 1 having to do with curfews, recognizing some kind of official standing of the neighborhood steering committee which does not have any such

standing. >> okay. i would request that you change the wording so it says to work with the neighborhood regarding requests for curfew extensions. and i would think that live nation would try to do that if they did that, but i think that putting in a specific committee like that is not consistent with the -- >> got it, thank you. thank you. >> would you be willing to take another public comment on -- >> 30 seconds. it goes to the issue that dealt with the ten-year request that live nation not apply for a permit with the proximate same size amphitheater and so forth. i understand the legal

preference to make it as neutral and perhaps not impose that, but i would make one plea from the standpoint of the public. [speaker not understood] significant unease about the future and the fact that this is america's cup, it's a one-year event, but in two or three years down the road, there is significant [speaker not understood] about what may happen down the road. and we believe that that was a condition language that was negotiated and we believe it's a fair representation and would serve the interests of the neighborhood. it's not ironclad. there are many ways to -- if the port or the land holder wants to be creative, there are ways to circumvent that. >> okay. >> it puts a stake in the sand. >> thank you. all right, all right. ~ are there any other issues that the city attorney or the

director added? i think you all may sit down. thank you for everybody's input. if we need to do the finding on the record, should we knock it out? first we need a motion. anyone want to make one? i can make one if no one does. >> you want to specify i think before you make the motion what the findings -- >> you can propose the motion and somebody could adopt that. >> the findings can be articulated as part of the motion. >> okay, go ahead. >> so -- >> i thought you were going to do that. >> you want me to read them in? i will. and i have copies here. i thought maybe it would be better for the parties to have it. >> that would be good. >> ms. cain, would you mind -- >> whatever you say. i can do this bypass over ~ by

pass over. >> if you want to hear it. >> i'm happy to. >> we heard other commissioners. you heard our board and where we're headed. and, so, i think you feel comfortable to do this, right? >> yes, i think we have some c-e-q-a findings to make and then finding about the entertainment commission permit itself and these additional conditions. >> so, start with the c-e-q-a findings if someone wants to chime in after that, feel free. so, c-e-q-a findings would be based on the record which includes but is not limited to environmental impact report for the 34th america's cup project. the planning department march 20th, 2012 moved to file and materials and testimony presented and available to this board for this hearing. the board finds there is no new information of substantial importance and no substantial changes to the project or circumstances under which the project is undertaken that will change the conclusions of the planning commission and certifying the project e-i-r or the board of supervisors's

affirmation of such determination in such a way as to require additional environmental review under the california environmental quality act, c-e-q-a. the record is incorporated in this motion by reference. and number two would be for purposes of this board's action, the board adopts as its own the board of supervisors's c-e-q-a findings which include rejection of project alternatives as feesable and adoption of statement of overriding benefit and adopts the mitigation monitoring and reporting program all as set forth in board of supervisors resolution number 109-12 and the port commission's resolution number 12-34. said board resolution and port [speaker not understood] and c-e-q-a finding are incorporated in this motion by reference. sure? >> based on all the information submitted to this board and presented at this hearing, the proposed operation complies with the health, zoning, fire and safety requirements of the laws of the state of california or ordinances of the city and county of san francisco that are applicable to

operation, the location of the proposed operation can adequately accommodate the type and volume of vehicles and pedestrian traffic anticipated. the pro poed operation has adequate safeguards to prevent emissions of noise, glare, dufty and odor that would substantially interfere with the public health, safety and welfare or the peaceful enjoyment of neighboring property. ~ and the permit applicant live nation has provided a security plan that adequately addresses the safety of persons and property and provides for the orderly dispersal of individuals and traffic. >> so, the permit is then upheld conditioned on the permittee's compliance with the security plan and the permit is upheld with the following modifications and additional conditions, and this would speak to the supplemental conditions that were just discussed. the first being that the condition imposed by the entertainment commission that "no more than 10 of the paid concerts shall be for attendance of 6,000 to 10,000 people. the remaining paid concerts shall be for fewer than 6,000

people ", shall be replaced by the following. "no more than 30 concerts at the maximum capacity of 92 87 people each or such lower capacity as specified by the san francisco fire department." the next would be the permittee may submit requests for up to six 30-minute extensions of the ending times of concerts to the san francisco police department. any such request must be received by the san francisco police department at least 10 days in advance of the concert. the endling time for the concert for which an extension is sought shall not be extended unless the police department approves the request for an extension and shall only be extended to such time as approved by the police department. the san francisco police department is encouraged to work with the neighborhood steering committee regarding requests for curfews. and finally the second modification. >> i think that the appointment by the public [speaker not understood] should be incorporated given the question as to whether -- >> i think that did leave a question in my mind at this

hearing. whether the steering committee was truly a representative group given the objections of other commenters. so, i would delete steering committee and just say, work with the neighborhood. >> the immediate neighborhood. >> immediate neighborhood. >> commissioners, i'm comfortable. >> okay. >> okay. and then the last is by october 31st, 2013 the permittee shall remove all site improvements and repair any damage arising directly or indirectly from any concert, improvements, removal of improvements or any other use of or activity by permittee. >> so moved. >> all right. >> okay. so, we have a motion by the vice president. if you could call the vote, please. >> we have a motion from vice

president lazarus to uphold the place of entertainment permit, the c-e-q-a finding as read into the record with adoption of the d of supervisors c-e-q-a findings a referenced in resolution -- i didn't get the number. >> [speaker not understood]. >> and with the three extra conditions as read into the record with the amendments to two of those conditions. on that motion, commissioner fong? >> aye. >> aye. . >> president hwang? >> there was an amendment to one of the conditions to be clear. i think the second condition. >> actually it's an amendment -- >> there was another one about the fire department as well. there was an amendment to that one -- >> no, no, not a stated, not a read into the record. >> commissioner hurtado? >> aye. >> aye. >> examine commissioner honda? >> aye. >> aye.

aye. >> the vote is 5 to 0 and this permit is upheld. thank you. ~ >> okay, a five-minute. >>please >> welcome back to the may 8, 2013 meeting of the san francisco board of appeals. thank you all for your patience this evening. we are calling item number 7, appeal number 13-0 24, legacy 455 market street lp versus the department of public works bureau of street use and mapping, property is at 455 market street protesting the issuance on february 15, 2013 to kabob trolley llc of the mobile food facility permit, sale of >> aye. gyros, kabobs and soft ruination, 11 mff-0 147 and we will start with the appellant. ~ is on for hearing tonight and

we will start with the appellant. you have 7 minutes. ~ good evening, my name is cathy mckenna. i represent the retail [speaker not understood] market building a 4,000 square foot commercial use building on first and market street. i would like to oppose the permit that was -- that has been issued by dpw for a push cart to go in front of our building. the reason cited in the brief specifically, the competition to our current tenant that pay high rent serves about four retail tenants that serve food and drinks. i average the rent that they pay right now which is $6700 a month. they also pay operating expenses for us to maintain the building for them, keeping it clean in the exterior and interior.

and that equals about $2600 a month. i'm not quite sure how much it is for a permit for a push cart, but it's probably a lot less th wh our tenants are paying. some other concerns that we had is market street is really heavily congested and a push carton a sidewalk we feel would infringe on people's walking during the day, during the rush hour. also could be a cleaning concern that might fall on some of our maintenance personnel. according to dpw and san francisco health department, kabob trolley reported that the employees would be using the jack-in-the-box rest room which is located on first street in the middle of the block which is far more than the 200 feet requirement forest room access. so, i'm not quite sure which rest rooms they'd be using because they certainly would not be able to use the rest rooms within the building or within our retail tenant spaces that pay rent.

so, we just ask that you revoke the permit for the kabob trolley based on those item. thank you. >> any question? i can get you a business card. thank you. >> we can hear from the permit holder now. good evening, good evening. my name is david chalk. on behalf of the permit holder and responding tonight. in the written appeal the appellant submitted to draw the board's attention to item number 7, it says we are members of the building owners and managers association who are formally opposed to growing trend of mobile food facilities. i think that's basically an acknowledgment that they're not per se opposing this particular food facility, but they just have a distaste for mobile food

facilities. and permit was issued in accordance with dpw regulations and there is a finding -- pardon me one moment. there are a couple of significant findings at the initial hearing at which the permit was issued. finding number 1 under pwc section 184.85, applicant provided drawing showing minimum six-foot clear path travel for pedestrians. so, i think that's a pretty clear showing that there's not going to be an undue problem of congestion by the food cart. finding number two, that the owner has an issue of unfair competition and noted specific finding no like foods are within a 300 foot radio per pwc section 104 [speaker not understood]. this food cart sells product called halalgyros and there are

no other establishments competing with that particular product. and i'm not sure why appellant mentioned how much rent the tenants pay. i don't see that as particularly significant. they pay more rent than the cart holder -- permit holder pays. and regarding the bathroom issue, there was actually subsequent to our brief being submitted, the permit holder did obtain a signature on rest room verification form for mobile food facility from the department of health from a different location located at 5 25 market street. so, they just obtained this recently. i didn't have this when we submitted our brief. i don't know if you want to have it submitted on the record. but there was a signature obtained by a facility at 5 25 market street which we believe is within the required 200 foot

radius that the dph -- i'm not sure -- >> could you put that on the overhead, please? would you refer to the overhead? pardon? >> can you just tell us what it says? >> what's the date on that, is that today's date? 5-6 -- may 6. >> so, it was recently obtained? yes, subsequent to our submitting our brief -- >> was there nothing in place at the time? i believe there was not a signed -- i believe -- and i don't want to say this on the record, i'm not certain. i believe that the appellant contacted the department of health to question the rest room issue. and then in the time subsequent when we submitted our brief in support of -- in opposition to

the appeal that the permit holder -- he's here if you want to ask him specifically. but my understanding is that he received a call from the department of health inquiring about the rest room issue because it was raised to them by the appellant. and then he subsequently went and obtained the signature -- >> okay, okay. yeah, that's my understanding. >> i'm sorry. just so i understand, does that say they can use that rest room? it does indeed. >> okay, thank you. and, yes, it does specifically say that. >> how far away is that, do you know? we don't have precise measurement. permit holder thinks it's within 200 foot radius. >> okay, but that was not a basis for the permit being granted because it wasn't in place at the time the permit -- there is a representative from dph here who can address that, you know. it wasn't raised as an issue at all in the issuance of the permit. >> okay, thank you.

>> commissioner, my understanding is that these permits are issued conditionally and that getting this rest room certificate is part of what's required before operation can begin. i believe that sounds right what the procedure is. >> are you done with your presentation? i just wanted -- we submit that the appellant hasn't presented any compelling evidence or any evidence at all in support of this appeal, basically the permit was issued. the permit holder and permittee was found to be in compliance with relevant code sections. and specifically there was a finding that there will be no undue competition. there's no vendors of the same product that the permit holder will be selling at the location. and the permit holder is complying with the requirement that they have a sick-foot pedestrian clearance so there is no evident submitted at all by appellant that there will be an undue pedestrian congestion problem.

and they make -- they indicate there possibly will be an additional cleaning expenses, additional burden to their sidewalk maintenance expense, but that is not substantiated by any evidence at all. so evidence that the appellant basically no evidence whatsoever. we feel that the permit was properly issued. we respectfully ask that the board uphold the issuance of the permit. >> sorry, one more question. what are the hours of operation in the permit? >> can i ask my client the permit holder specifically? ~ i'm not 100% sure. would that be okay? >> come up to the podium, please.

asaad mine. >> what days? 7 days a week. >> before you leave, counselor, do you have the radius map? showing this location? i do not. i don't have a radius map, no. it's part of the requirements we did submit a radius map to -- >> i understand. do you have the map? we don't have it. commissioner, i can give you our map which is 150 feet if that would help you. >> no, that's okay. i want to see what other restaurants are there. >> you have a minute left. we don't have the map with us tonight unfortunately, but there was a finding at the hearing where the permit was issued that there are no like foods within 300 foot radius per pwc section 18.4 88. we don't have that radius map with us tonight.

that's all we have to say at the moment. thank you. >> commissioner fong. >> good evening, commissioners, john kwong from the department of public works. the appellant and applicant holder did provide a brief to the board and i believe there is really nothing that the department can add to -- in providing a brief. what we can do is provide you some history of the process as it relates to this -- for this location. in september of 2011 the department received application for a mobile food to be placed in this location. we provide public notification number. we received two letters of objection from commissioner wakefield and from focacia objecting to this location in writing.

we had a public hearing, a director's hearing in january 2012 where 7 individuals came and presented objections to the permitting of this location. the objections were similar -- actually, nearly identical as it relates to both the objections to the department and to the brief that was submitted to this board. in our review, we determined that there were no like foods specifically, that the suggestion that it would provide congestion to the sidewalk was not -- we did not believe to be correct. that -- the suggestion there would be additional sidewalk maintenance is alleviated by the permitting requirement that the merchant themselves must clean a minimum of 100 feet surrounding areas of all debris left in the area. based upon that information we

provided tentative approval to the applicant, okay, for this permit and then that -- this is the reason for the appeal. prior to the issuance of the permit, we would need to receive the san francisco fire department approval for any open flame source. the department of public health approval for both the sanitation and the rest room along with business certificate. we have received all three at the time of permit issuance. we have not received any information at this point in writing from the department of public health as it relates to specific concerns to the bathroom. it appears that there is some, obviously, given that the applicant has gone back to the department of public health for clarification. let me show a picture of the proposed location. you can see from the picture the bike rack located at this

location, and there is a muni pole located at this location. the food cart will be placed between the two locations. given the location of the cart and the furnishings along market street at this specific location, it is highly unlikely that people would meander in and out of the pole and these bicycle racks as a normal pedestrian path of travel. therefore, we did not believe that was going to be an issue specifically. we followed the process, obviously. and we believe that this permit is appropriate. i'm here to answer any questions that you guys may have. >> mr. kwong, in your analysis of being no like foods, what restaurants are within that radius of the required radius here? >> i know staff reviewed it. the objections here

specifically were for fall city diner, focacia and -- take a look -- star bucks. those were the ones listed in the brief. >> in the brief. are those the only ones? those are ones that were in the immediate area. there were no other food locations at the time of permit application that i know of. none were reported to me that there were any foods related to either kabobs or gyros in that immediate area. >> do you have any knowledge about this bathroom issue and the reference to the original bathroom facility thing that jack-in-the-box which was perhaps outside the required radius and now they've shifted? or is that strictly the dph issue? >> this is a strictly dph issue. however, if at any time either health department or fire department inform us that their