for more opportunities we have volunteering every single day of the week. get in touch with the parks and recreation center so come >> good evening and welcome to the june 5, 2013 meeting board of appeals. commissioner frank fung and commissioner honda and hurtado. to my left is -- who will provide the board with any legal advice and we have mr. pacheco. i'm the board of

director. scott sanchez is here representing the planning department and bureau of streets and mapping and jeffrey is a building inspector representing the department of building inspection. >> mr. pacheco if you will go over the meeting guidelines and conduct the swearing in process. >> the board request that you turn off all cell phones and pagers so they will not disturb the proceeding. the boards rules of presentation are as follows: appellants and department representative each has seven minutes to present their cases and three minutes for rebuttals. people affiliated with these parties must include their comments within the 7 or 3 minute minutes. members not affiliated with the parties have up to 3 minutes to address the board and no rebuttals. to assist the

board in accurate representation of the minutes, people are asked, but not required to submit a speaker card when you come up to the podium. speaker cards and pens are available at the left side of the podium. the board also welcomes your comments and suggestions. there are survey forms on the left side of the podium. if you have a question about rehearing or board rules, please speak to a staff or call the board office tomorrow morning. this meeting is broadcast live on san francisco government television cable channel 78 and dvd's are available for purchase from sfgtv.

>> thank you. if you intend to testify at any of tonight's hearing and wish to the the board hear your testimony, please stand and raise your right hand and say i do after being sworn in. pursuant to the rights in the sunshine ordinance in the administrative code. thank you. >> do you solemnly swear ora firm that the testimony you are about to give be the truth, the whole truth and nothing but the truth? thank you. >> we have one housekeeping item this evening that has to do with item no. 8. protesting the granting of a variance. the appellant in this matter has requested that the hearing be rescheduled and the variance holder has disagreed with the

president's consent we can bring up the parties and have them presented to you about the rescheduling request. >> i would like to do that. i would also like to make a self disclosure that i am friends with the permit holders wife and but i don't believe that is going to interfere with my ability to sit for and rule on this matter. >> okay. thank you. >> so we can hear from the appellants first. president wang, three minutes? >> yes. >> i'mal son perry, the appellant. i'm here in person to talk about the request made yesterday and i'm confused because the copy of the request was agreed. the other party agreed to it. so anyway, i know that it's still a board vote

whether to -- >> i believe i explained that the permit holder had agreed to a june 19th date but it wasn't a date that i could be here. >> that's okay. i did not get response brief before this date which is not a lot of time and we called and asked what to do about it and we requested the scheduling and i didn't fax this until yesterday and got the brief yesterday afternoon. so i understand that it's not the best way and nobody wants to reschedule it a month later but we were still stuck with having a day to look at it and figure out whether there was anything new and it might be obvious that i'm not an attorney. we are representing ourselves as neighbors and we keep going through the process

and following the rules and for whatever reason i didn't get the brief. i don't know if it was an address problem or as the respondent said the postage maybe was wrong, i don't know but i didn't get it and we feel we need more time. i understand, the facts we feel we have are important and so bruce in person to make that request again and ask for a vote. >> when did you receive this? >> about 4:00 yesterday. >> through e-mail? >> he brought it to my mailbox and e-mailed it. >> you were aware that you didn't receive this as of friday. >> i got it thursday and made the phone call. >> i'm just looking quickly at

the materials. it's two pages. >> the whole brief, well but all the paper >> all the attachment. got it. >> we are told nothing is different. that's a valid point. the fact is we had 24 hours. >> sure. you said earlier there was some agreement to move the date to june? >> i would have been fine with another week but i looked at the schedule it would have been 6/19 and because of the schedule it would have to be pushed another two weeks. >> so you are comfortable with june 19th? >> yes. >> okay. thank you. >> we can hear from the variance holder now. good evening commissioners. when we found out about the miss cue i'm not sure what happened. maybe the address was wrong. we

tried to address it as soon as possible. we got the call at 1:00 in the afternoon. we dropped it off by hand and mailed two of the copies to the parties. i think we would have agreed to an extension if it was only one or two weeks. i think in this situation our original variance was scheduled for december. we agreed to continue it until january to discuss with the parties further. no information has changed. we didn't submit any new information as part of the brief. it was a rehash of the original variance application and made in january. i don't believe there is any new information to review as we felt that the zoning administrator had ample information to make his determination. we would prefer to have this matter heard today

since they had 5 months to prepare. any questions? >> what substantially is different? the two pages? >> we did a description of the project which is i believe a physical description of what we submitted. there is the drawing that was presented at the variance hearing which describes our proposed building as well as the two adjacent properties and all the information was submitted. >> are all of these attachments previously submitted? >> yes. we were showing these at the variance at the hearing. nothing has changed. >> june 19th is acceptable to the appellant but was acceptable to you but our board of directors say it will be a midnight hearing. >> i wasn't at liberty to

address that. >> what's the harm of moving it to july 10th? >> i just think it's -- we've been waiting 5-6 months from our original variance hearing. it's getting pretty delayed for my client. we are trying get this process over with. we feel like it's a fairly cut and dry situation. we would like to have it heard. there is no new information. we are not sure what the extra couple weeks are going to do other than delay our clients and cost additional funds. >> but the decision wasn't made until mid-april? >> correct. the variance was, the decision wasn't issued until mid-april. correct. the hearing was end of january. >> okay. any other questions? >> thank you. >> mr. sanchez anything? any

public comment. commissioners, it's up to you whether you want to make a motion or not? >> anyone want to stay here until midnight? it's a very difficult decision, i think. any thoughts? >> we have a procedure. they didn't have on that particular date. they should have the timing based on what's in our procedures. that's their expectation. i think we should support that. >> we are talking about moving it to july 10th versus june 19th. >> to let everyone know i won't be here june 19th. i won't be here. >> you are skipping out on the fun night, huh? >> any other comments?

actually, never mine. i will be here. >> i'm going to move it to -- i would accept moving it to july 10th. >> we have a motion from commissioner fung to reschedule item 8. v 14046 to july 10. on that motion, president huang, lazarus, fung, honored a hurtado. this matter is scheduled to july 10. there is no additional briefing because all briefs have been submitted. >> thank you. >> all right. so we'll go back to item no. 1 which is public comment. is there any member of

the public that would like to speak on an item that is not on tonight's commissioners? >> no? okay. item no. 3 is the adoption of minutes. for your consideration of the meeting of may 22nd, 2013. >> i move to adopt the minutes. >> thank you, any public comments on the minutes? >> seeing none. mr. pacheco please call the roll please. >> on that motion from the president to adopt the may 22, 2013, minutes. commissioner fung, aye, hurtado, aye, lazarus aye, commissioner honda. those minutes are adopted. >> item no. 4. item 4: subject

property at 349 banks street. letter from vicki shipkowitz, appellant, requesting rehearing of appeal no. 13-034, shipkowitz vs. za, decided may 08, 2013. at that time, the board voted 5-0 to uphold the zoning administrator's release of suspension request on the basis that the zoning administrator did not err or abuse his discretion. subject property owner: candu capital group llc. za order: asking that the suspension against bpa no. 2012/11/29/5100 be lifted for the reason that the planning commission has held a public hearing on the project and voted unanimously to not take dr and approve the project comply with nov no. 201275901; legalize construction of deck through the roof at 3rd floor built without benefit >> item no. 4. item 4: subject property at 349 banks street. letter from vicki shipkowitz, appellant, requesting rehearing of appeal no. 13-034, shipkowitz vs. za, decided may 08, 2013. at that time, the board voted 5-0 to uphold the zoning administrator's release of suspension request on the basis that the zoning administrator did not err or abuse his discretion. subject property owner: candu capital group llc. za order: asking that the suspension against bpa no. 2012/11/29/5100 be lifted for the reason that the planning commission has held a public hearing on the project and voted unanimously to not take dr and approve the project comply with nov no. 200 127-5901; legalize construction of deck through the roof at 3rd floor built without benefit of permit. #1234 1234 >> versus the joaning administrator decided may 8, 2013. >> hi. i'm vickie. this is a quick reminder that the

neighbors at 349 banks are concerned with the easy access and ask the board rescind or require modifications of the permit. >> the hearing request is based on the following circumstances. commissioner were asked to talk about this -- fatigue which is understandable. there was three parties involved. it would have been difficult in the best of circumstances much rest at 11:00 at night. for the sake of due process, this case deserves to be heard at a reasonable hour. the city was not held accountable. they did not provide adequate response to specific errors that were called out and in some cases no response. they have since the final made new errors related to this permit. they have again issued a permit without a public notice review. this is

revision to a suspended permit without during a suspension period. new and important information was brought forward by ddi. a comparable case is a dormer which was set by adjacent property. i don't believe the impact of which could be absorbed so late at night. what's more, not adequately considered was that this design creates and attractive nuisance. no one disputes this fact including the land project manager at the board of supervisors office. should the board not consider, neighbors will be forced bylaw to erect barriers. neighbors are being penalized. the deck in question is not being shown tonight. there is no 3rd part

liability in the design. investors have not been held accountable. misrepresented the fact in the permit in the brief and the hearing. you may recall the video with contractors who they didn't know jumping on and off my roof. they built without permit and continue to work despite the suspended permit. they spray neighbors and myself including those who came to support me. they have maligned my character. i urge the members of the board of appeals that hear this case at a reasonable hour. planning as nice as they are and holding

investors accountable for the truth to disrespect the city and neighbors. thank you. >> okay. we can hear from the permit holder now. this seems like a mockery of the process. i understand the process is designed to avoid manifest injustice. i don't know how the flags that were just presented that were likely to mean speculative is actually going to help you decide whether we should rehear it or not. the requirements for that the purpose is to manifest in just and to bring forth

material facts at the time this was done. if the board members are tired at the time of the hearing. matters related to code violations, fire safety access are being addressed at the time of the dr, they have been addressed in the appeals process. nothing has changed from that point to now. when the appellant requests a dormer to be compared for a deck, it clearly shows that she has a lack of understanding of what is required. with respect to the neighbors coming, we've actually had an open house. the house is open on the market. you can see the calculation of what profit we might make. we've had neighbors come to apologize and say this is beautiful. i don't see why this was done. we don't know

neighbors. i don't have the time to do that. and they have come on their own volition. we have not stopped them from coming in. we got introduced to them and they welcome the property. you can see in the dr process and during the rehearing process you will not hear any neighbors coming by. they are coming by and apologizing. in terms of getting your status update on the project, all the permits have been completed and they are all building and county code compliant. if you agree to not retheory further, we would go ahead and complete the work make sure it's planning and building code compliant and i understand the standard department is setting for us for even being a half an inch away which will be a leeway in any other case is not given to

us. i'm fine with that. if it's 42 inches, i'm glad to give you 42 1/2 inches. i'm fine. we are good. if you have any questions, we are happy to address. >> thank you. mr. san chez. >> there is two points i will be brief. first a permit that was addressed in march and one suspended to include. that does not require planning review and did not trigger. there is no service notice. second in regards to liability issues, i don't really see the distinction between the deck here and any other roof deck that we would have here which is a very common situation. i

think it's a very common condition to have a roof deck at or near the same level in the adjacent building. i will be able to answer any questions to address procedural issues. i'm available for questions. thank you. >> thank you. >> anything, mr. duffy? yes? >> good evening commissioners, joe duffy. just to clarify, there is only one building permit signed off earlier in the process. we still need to do inspections on two issued permits on the suspended permits. i think electrical maybe signed off an plumbing are still open. and we did receive a new complaint on may

27th, for 8 separate items. we wrote a notice of violation today on 349 banks for no guters on the roof which is unrelated really to the appeal but there is no roof gutter so they are going to have to figure something. if the roof leaks on the banks property. they have to take care of that. we did write a notice of violation. the present owner will be dealing with that problem. i just want to clear that up. in the brief i read that this is the first time that this is done. i did not say that it's the first time i had seen it done. i just wanted to clear that up. we'll make sure that it's built to code.

>> available for any questions. >> any public comment? seeing none the matter is submitted. >> commissioners, the larger majority of the request and the brief is not new information. it was addressed during the appeal hearing. there is one new item, the appellant of course is allowed to do whatever improvements she wants to her roof as long as it's within the code and it's legal. at this point, i don't see that the threshold of a rehearing has been covered. >> i would concur. i also want to comment that notwithstanding

any commentary that might have been made after 11 p.m. that we are tired. that's a human condition. our eyes are open, if you said any of the commissioners were sleeping and not able to attend to the hearing appropriately, that might give me some pause, but i believe we were all here present voting and so i don't believe there are concerned that i have on that front . with that i would move to deny the rehearing request. >> thank you. mr. pacheco please call the roll. >> on that motion from the president to deny the rehearing request. commissioner fung, hurtado, lazarus, commissioner honda. aye. >> thank you. the vote is 5-0. this request is denied and a notice of desist an order.

>> item 5. item 5:james stephensdba "sausage slinger", appellanttss vs. dept. of public works bureau of street-use & mapping, respondent 100 new montgomery street & 3151-3153 16th street. appealing the revocation on march 20, 2013, of mobile food facility permit sale of hot dogs, chips and sodaa. permit no. 11mff-0070.>> item 5. sf 51234 i want to thank if board of appeals for hearing this appeal and i want to thank dpw for accepting this appeal. i'm a mediator and' parent of one of the appellants, one of the partners. phillip grossman t licensee and the holder. the

dpw has brought to the attention at the hearing that several things that the appellants were in violation of the hours of operation and that they were violating the good neighbor policy which is in effect and part of their license. the appellants have two locations. they have the location in the mission at 3153 i believe 16th street and 100 at montgomery street. when the original water was issued granting a license, they were giving until 3 a.m. to stay open. the provisional license said 1 a.m., but the actual permit that was issued said 3

a.m.. although the appellants did not stay out until 3 a.m., they operated passed the 130 a.m. or 1:00 a.m.. it became apparent to the dpw that the appellants were staying up past 1 a.m. and a call was made to them on june 1, a discussion was held and told it had been amended and the e-mail had been sent and apparently not been seen by james steven. the mission area there is two bars. it's very livelily in the mission. the card is a small card. it's in front of one bar very close to one of the bars.

about 1:00 the starts to get crowded. it should be noted there were three unlicensed, unregulated carts which the appellant had made the report to the police which were taking business from them. the appellants had gone through all the requirements set out by the city in order to get a cart with water, contained a certain temperature and had a refrigerator and they were licensed for this area. they had most of their business taken. one of the important things is when after june 1, they started getting more complaints. these complaints we believe were generated by some of the business owners in the area who didn't want a cart in front of their place selling food. it was impossible for the

young guys to get the information from the dpw as to who was making these complaints. it's hear say. it's unvetted. anyone can file a complaint. they are small carts. they didn't have loud music playing, the bars were consistently letting in and out and they boil sausages and hot dogs. they have sauerkraut and onions and condiments. the unregulated carts down the street were cooking bacon, onions and peppers and we believe that many of the complaints that were heard were about the smells that were