use and a clustering of these eating and drinking establishments made sense, and especially in areas where the public transit is accessible and which in this case it is. and so, i agree that the in the previous case, the concentration issue did come up, however that was a concentration of the formula retail use and mot for eat and drinking establishment uses and i am not sure whether or not we have made that parallel in the past but perhaps,... >> i believe that you are correct, i think that is the way that we have looked at it. >> well, i agree that there are two different issues, but it seems like the numbers are extremely important on the last case where the commissioners would go one way if it is 19 and the other, at 20 and now if you have got this vast over, you know, concentration and it is not hardly raised at all. and but, the commissioner sugaya brought it up and, i

don't think that this whole transit issue makes any difference because clement street is impossible to park on and i think that if there is anybody from the other outside the neighborhood that is coming, to visit this place, it is going to be a challenge. and so i think that is something that we should consider, although as i said i am always in favor of businesses where there seems to be a possibility of filling a vacantcy and it seems to bring a lot of good things in and even though it might increase, the concentration a little bit, i'm willing to overlook that. >> commissioner borden? >> i feel the same way there is not an over concentration of sushi restaurants in that area and just having set that through the gentleman's presentation where 70 percent of americans make their decisions for what to eat for dinner after 4:00 p.m. and for their research that vital streets should have a balance of 60 to 65 pepser percent of

eating and drinking establishments that is what they found when they looked through all of the streets i feel differently about our concentration policy and wonder if we should look at that. the whole naturer of retail is changing and the people buying the things on-line and that is the reality. and so that is why, the best buy and a lot of those big stores are going out of business. >> and so, at this point the only kind of retail that is thriving is specialty or convenience related. the point is that just at some point we need to look at the trends and the facts of the retail and whereby, how we look at these sort of categories and i know the concerns when these controls were set has more to do with the bars or the restaurants that turned into bars and that is not what we are dealing with but i will move to approve of the conditions. >> commissioner moore? >> we set the discussion for

chipotle was the neighborhood opposition. and the merchants who very critically spoke about the over all change in the nature of market street which then led to a policy regarding form law retail. this is in a sense not formula retail that is judged but over concentration we did not have any neighbors to speak either for or against it, did we look at the element of participation and self-determination that does not seem to be a discussion here. the corridor is kind of dominated by a small and it puts the emphasis on the various small restaurants of different kinds and size, and this is a 1600 square foot with an over 400,000 if we add to this chipotle and i think that it is hard to use this and i am concerned to go forward to very carefully look at how the corridor is starting to strip out the other necessary

neighborhood retail. and because that was over the various self-reliant neighborhood from shoe store and now we are seeing more and more restaurants and i do think that we need to be more carefully looking at the transformation whaf is happening there. >> commissioner hillis? >> yeah. i agree with commissioner moore, i think that sometimes we try to make these kind of these rules on percentages and it is more, i think that it is more art than science and that is why we are here and the 20 percent is a guideline. and i agree with a lot of commissioner antonini's comments about the 20 percent. and i think that we denied it for 15 percent, you know that i think that it was not in the right place but for this we have not heard from people, the percentages are a guide, but it is our job to kind of look at them and put them in kind of a context of the neighborhood. so i am supportive. >> commissioner antonini? >> well, i think that we also have to look at things and not a popularity contest and the case of chipotle, they were a lot of people including the merchants and groups that came

out in support it was not unanimous by any means. and just because nobody is contesting this does not mean that it is an automatic approval. you have to look at its appropriateness. i think that is a problem on clement you are seeing more and more of one type of eating establishment at the expense of some of the other smaller businesses and even a variety *f places to go, especially when you go passed the first blocks and then there is some variety there. but, you know is there is really nothing further down and that is any different. so at least we are getting a sushi place is some what of a change and i think that it is going to be fine and put in a viable business and replacing a vacantcy which has been there quite a while and i think that i am in favor of the motion. >> commissioners there is a motion, the second to approve with conditions on that motion, commissioner antonini? >> aye. >> commissioner borden >> aye. >> hillis. >> aye. >> moore.

>> aye. >> sugaya. >> no. >> fong. >> aye. >> 5-1 with commissioner sugaya voting against. >> commissioners, just a general announcement that was made earlier, item 16 aand b for 2013.0574 d request to review have been withdrawn >> that will place you on the final item 17, 2012.0112 d request for a discretionary review. >> good evening, south west team leader. this is the proposal to legalize and expand a roof deck and removal of the glass screen on the top floor of a mixed use

building in the rsv district. 2010, this structure is altered and a permit to alter this structure which included renovations to the street facade and the construction of a three story roof deck. a dl was filed on that permit and withdrawn on a agreement between the drfilings and then the owner of the property. and this agreement included a list of the desired modifications which included the reduction of the size of the roof deck and includes the translus ent screen on long the western edge, it was set back ten feet and not to be visible from the street but the property was since sold and this agreement was disclosed to the new owners, and the new owners then expanded the deck and filed a permit of 2012 that was subject for a ten-day notice rather than the normal section 311 notification, and the determination, a dr was

then filed. >> the deck's expansion did not require a review of the residential design team and does not result in an increase of the exterior size of the structure. however, this feature has been reviewed by the senior management. the deck will have a direct line of site into the direct rooms of the residence, however there is a 65-foot distance between these structures. and a translus ent screen along the edge of the deck and the buildings is not an option. because it would be visible from the street and there by violate the guidelines for this structure. the new owners desire the roof deck to meet their needs, the planning department review of this project does not require consistency with the past agreements made by a previous owner in our evaluation of the project. fung is serve an environment that it provides the only usable open space to the property and is the only available area on the site for

conceivablely be located. the planning department determined that it will not significant an adverse impact and nor does it demonstrate an extraordinary circumstance and this includes my presentation, and i will be happy to answer any questions by the commission. >> thank you. >> calling up first the dr requestor? >> you have five minutes. >> good evening, my name is mark anderson, my wife and i have filed a dr. the staff person has accurately and summarized the history, and that the developer came in in 2011, and remodeled the building and we are all in favor of that and the neighbors are in favor because the building is in bad shape, and however, there was, we reviewed the architect's plans and various meetings and we were concerned that it was not in

keeping with the historical nature of the building and there was a prolonged negotiation with the developer and the architects and as the design, and we reached an impass at one point and that is why we filed the dr and the neighbors filed the dr in september of 2011. okay. and the principal problems that we have is that the addition of a penthouse and a roof deck that was mentioned. and we were in the neighbors were against those penthouse being built at all but in the negotiations, after all of the offer the dr, the developer became more interested in the negotiating. and the dr only lasted a couple of months, because we do work on the agreement. and that is the key point that i want to make. that the staff person kind of going off. and we reached it, and we withdraw the dr and the agreement was that the owners were shrink the size of the deck and that the plan and that

changes. and the developer complied with the agreement and the owners moved in and the owners moved in, they promptly expanded the deck and put the glass screen up against where it is very visible on the west wall. we did not immediately file this dr, instead we had meetings but the owners would not budge, i think that it is important that the record shows that the current owners, were divorced from the developers and were working with him all along and in the submission, to this body, and that they say that the developer told the applicants that they had agreed to the design modifications and we think that they went in knowing about this deal and i don't know how they couldn't have. it is the same architect. and you can see and he told them all about, and the developer did not say anything that i had a problem with the neighbors and here is how it

worked out. now, on to the originally the wind screen that was violation of the sequa was to be just remain there and recently i understand that will be taken down and here is the main point, from the policy point of view, we submit that the staff should not be able to force an agreement and it was, the agreement was in the planning department's files, and the planner tom lang was involved in that and that filing the paperwork and so it is like okay, great you guys got a deal and this is what we are going to do and we should go forward and we have a bad policy to you know, see the owners move in and we are going to ignore that agreement and we are going to ignore all of that and do what we want and i encourage the people to ignore the rules and mind with the process. >> thank you. >> now, calling for speakers in support of the dr?

>> are there any cards? >> sorry. >> speakers who are in support of the dr? one more there. >> okay. mary becraft, veronica ganar, blare moser, charlie moser, gary kole, caren i think is in support of the project i will wait on that one. >> if i have called your name come on up. >>

>> as the neighbors that are here in the request to up hold the agreement. and i have read the petition and letters in support of it and none of these people participated in the meetings that were held by the developer or socc, in fact some of them did not live in the neighborhood at that time. and this is not about who is going to have the most expensive lawyer or who likes to, it is an agreement that was made through a process that everyone respected, and we expected it to be upheld and the planning department endorsed it. and we can't believe in the system, then where can we believe? thank you. >> president fong and honorable

commissioners, my name is veronica and i too was part of the organization at the time meeting with the developer and the architect. and we spent many hours and the weekends going over the plans and then when we hit the snag the dr was filed and in agreement was made. and nobody got both, neither party got everything that they wanted, but we came to terms of a compromise was made and we believe that we felt that it was memorialized in the memo that was sent to the architect on october 12, 2010, or 2011. any way, now, here we are once again and it is disappointing because we thought, we went through this process two years ago. in the hopes that we would not have to deal with this down the road. and so, i'm in favor of the dr and i hope that you will make the right decision, thank you.

>> >> commissioners? my name is blair moser, my husband and i are 40-year residents and we live three doors from the property and we are also members of the coalition and a dozen or more members of the neighborhood association led by kim striker and another neighbor who is a historic architect specialist took pains over the months to work with the developer to make the corner property a shining example of the types of houses that line fair oaks street. we all worked hard together to protect and preserve our neighborhood. unlike the owners we have followed the rules of the san francisco building department and the planning commission and negotiated through various conflicts on the redesign of the property. but the owners when confronted about the changes immediately hired lawyers and refused to negotiate with the community. and the fair oaks community coalition followed the rules that are in place to protect

the public, health and safety of a density populated city like this. and to defend the public interest from over zelous developers, the city signed off on this agreement. just because the owners did not participate in the original planning and redesign from the very beginning, does not now give them license to run rough shot over the agreements that were agreed to by the planning department. signatures and a petition by the new comers is a demonstration not of good planning but clutter of politics, the official agreement with the community should be honored and signed. >> >> honorable commissioners, my name is charles moser. and as you heard, i live a few doors away. i am also a charter member of the focc. and founding member, which has

had other names over the years. and but we have always been involved with and improving fair oaks street and the community around it. we are not a bunch of pranks who like to complain about the real estate issues and to come before the board. we most recently won a justice award from the district attorney's office for assisting substan hally some survivors of sexual attacks in and around our street. we are interested in the neighborhood improvement. and when we heard that this some what decrepid building was going to be redone and turned into a residence, we were happy about it and we were interested in what the developers were doing. and we entered into a good faith agreement and it was signed off by the planning

department and mr. wang. i have made many improvements to my house over 40 years and i have always followed the process of a permit and it is seeums burdensome dealing with the city process but i respect the process and this is a density populated city. we have to have some way of doing these things. and i report the necessity for it so i am asking you to up hold the design request, and adhere to the original agreement, which we all entered into in good faith. thank you. >> thank you. >> >> my name is gary goal and i live on fair oaks street.

i also sent in a letter which was aparently not noted in the planning department package that was on-line. but also a nearby neighbor that was involved in the discussions with the developer and the architect over, and i ask you

to agree to the dr.

>> i was in the president last year and i was involved in the whole process and the thing for me here is that this is a very robust community development. and this is a project where we spent a lot of time with the architect and the developer.

it is tragic that a set of developers could renovate and this should not be the set up and to the extent that whatever you end up deciding getses memorialized that will be a plus. >> project sponsor you with five minutes. >> i am the attorney for the project sponsors.

first of all they did push this and did not apply for a permit because they honestly did not understand the planning process in san francisco and having lived there for 27 years and it is something that is alien to the experience. and now, they came they were told that they were told that they cannot do anything, and they were moving it and they were surprised and i advised them to immediately apply for a permit to ask for permission, and they did that.

it is twofold, one is that you have a letter before you that basically said that at that time they have it in place and they would have had to have wait for a dr hearing and they would have lost the loan and the other side of that they would have lost a savings. and because they investment, in this project. and in 19, in 2010, the economy was still bad and it is very difficult to get loan for any department. and now let's go to the agreement. the truth of all of the agreement is not binding, on any subsequent purchaser. number two, if we go to the list of the agreement, it is so to me, it is to me a little bit over reaching, in terms of how you dictate to somebody it is not that you can't say that the building and like that, which i

can see can be very object able, you have to do it to make your garage door disappear, and dictating on the basis of privacy from across the street which is a 60 foot wide street to say, you cannot have the window basically that your sil line is at 60 feet high and then instead of allowing planting, and as a way to screen, to provide privacy from across the street, it is a limitation on the size of the only usable open space.

the way that it faces actually casts a shadow on that deck and that is one of the reasons that they allow that screen to disappear and just use the planters. so that they can plan to resolve the issue of privacy. there is no circumstance in this, as far as the agreement, the agreement is with another party, like i said, it is not binding to them, and to this particular permit holder and finally, your department every day encourages the neighbors to work the agreement and then, when the agreement is presented to them, and the plans is... it is basically conform with it,

then the plan assign is solved and then that is not does mean that it is a department policy that if there is an agreement that nothing can ever be changed. so that i think that is the other, consideration that i don't think that that is any policy out here to set that nobody can ever be changed just because it is an agreement at one time. that somehow is binding. and forever in the future. even the legal agreements have provisions that can be changed if the parties agree. >> thank you. >> thank you. >> now calling speakers in support of the project sponsor? >> you have three minutes, my name is kegt enaaron and i live

at 201 fair oaks and prior to moving there i lived in bullering game and raise myed family there and when my last doterer was preparing to go off to college we look to move to san francisco sfo all of the reasons that people of our age do that. we were looking forward to living in the city, and into our retirement. and we looked at multiple homes and searched for certain criteria, and including access to public transportation, appropriate room layout for us and for our children, and outdoor space. 201 fair oaks met all of our criteria with the proximity to muni and upper family room and roof deck for outdoor space we purchased the house in july 2011 and moved in very excited since the house has what we were looking for in terms of finishes and wooden stone floors and bathrooms and etc.. and as far as the roof deck was concerned, it was our own outdoor space, and while the agent told us that there was an

agreement to the size, that we could use as deck, we were told at the same time that it could be changed. and that made sense to us that we could use the deck because of in our 27 years in living in burliing game in carrying projects we have come to understand which projects required the permit and which didn't and which might fall in the gray area and certainly this one, for example, the work on our front store entranceway did not require a permit. and since the usable deck size is defined only by the planters on wheels, moving these seems to us a great forward task that would not require a permit. >> the planters had to be on wheels since these have been stationary there is no access and no way to access the rest of the roof for maintenance or for emergency given the fact