union and 24th street that have a blend and if you go down any night or days, the streets are very, very busy and everybody is doing very well and few vacantcies. so i don't think that it is a question of formula retail, or local business. >> and the other issue that comes up is many of the speakers and most of the commissioners think that we can go out and order a business and like they will appear from nowhere and we will have a business that will take this up. and the family who testified has done their due diligence and the owners and also the leasing agent spoke about the efforts over the last two years, to try to get a tenant in there and they were not successful and they are leaving at the rent at the amount that was charged three years ago. and still, they were not getting any other takers. and i think that to some degree we sometimes over reach our authority in san francisco. i mean, i would be upset if the

commercial space our family owns in the east bay came in and told us who we could rent to and not. they could say that we don't like the signage, we don't like this particular aspect of it. you have to have less parking or more parking, but to tell you that you can't rent to someone, and you have to continue to take a loss on a building that your family may depend on for income, i think is not a good situation. >> commissioner sugaya? >> the other issue for me is that if this is another formula retail right on the corner across from the safeway shopping center and i think that coal foods is being built across the street and all of a sudden we are going to have this concentration right in the area where we are trying to say that we don't want the concentration and i think that we did talk about whether it might not be good to have all of the formula retail all in one place at one point in our deliberations over starbucks and cvs and that did not seem

like a very good policy to follow. and i think that the only way that you have to go down to south of market towards the ballpark and all of the new developments there. to see what formula retail and the neighborhood is all about. it is pretty deadly for me. and if you look at a lot of the smaller businesses, they are in all older buildings, that may not bode well for the new development along market, i hope that changes. but to have one formula retail after another on that new development down there. and it is quite deadening to me. it is a little different in with the construction activity and thes a demonstration that if we don't watch it and other areas can be susceptible to the same kind of development and to the comments that were made

about the valencia not having formula retail, or very little, but other do like chest nut, i would like to think that the city's policies as they have been applied to chest nut and other neighborhood commercial has struck a balance between formula retail and local businesses without which the neighborhood woulds not be there. >> commissioners there say motion and a second on the floor. >> do you disapprove? >> commissioner antonini >> no. >> commissioner borden >> aye. >> hillis. >> aye. >> moore. >> aye. >> sugaya. >> aye. >> and president fong >> aye >> so moved that passes 5 to 1, commissioner antonini against. commissioners we have two more items and i am told that the next one is very fast. would you like a break now or hear the next item and take a break or just keep going. >> all right.

>> next item please? >> in that case we are move on to item 1 a, 5, for case, 2013.0479 cat 443 clement street. >> staff here. >> there she is. >> and look. >> good afternoon, commissioners the planning develop staff and property ject before you is a conditional use authorization request to establish a new restaurant, cba, happy sushi at 443, clement street. the subject property is located on the ground floor of a single story between 5th and 6th avenue. the department is recommending approval of this project. the site is vacant and was previously occupied by retail discount store. and the proposed change of use is desirable in that it is converting the vacant space into a compliment use in the

neighborhood. the proposed japanese restaurant attempts to provide employment opportunities and operate from ten a.m. to ten p.m. and operate during the daytime and nighttime hours. >> although the existing eating and drinking establishment exceeds 25 percent of the needed area sited in section 303 p and exceeds 20 percent in the general plan policy, staff believes that the replacement of a vacant storefront with a neighborhood serving would result in an over all improvement for the subject neighborhood. furthermore, the increase of eating and drinking use business one percent within the immediate, 300 foot area will have an insignificant change in the character of the district. the proposed use is that it is consistent with the neighborhood character and will have no significant impacts on the neighborhood. and no additional public comment has been submitted following the release of the commission packet and therefore, the department

recommends approval of the conditions. >> this concludes my presentation, i will be available for questions, >> thank you. >> project sponsor? >> business owner? >> i am judy, okay, i don't know what to say. okay, it has been vacant for more than a year so we have been lower in the rent for a few times already. and so we are thinking to convert is to a sushi, restaurant where a family member can run it. >> okay. >> yes, thank you. >> is there any public comment on this item? >> public comment? >> okay. >> seeing none, public comment is closed. commissioner sugaya? >> yes, i have a question. the staff cited increases in both the over concentration, which is over 20 percent going from 21.9 to 22. which we all can say is maybe

miniscule, however it is an increase and it is above 20 percent and the other one it is 38 to 39 percent a little bit more at one percent increase. but 39 percent is 14 percent above the concentration limits. so, i can't understand how the recommendation is being made in the face of exceeding both criteria. and to make the argument that it has been vacant is the same argument that we got for the last one which we just denied. so it does not seem like a very plausable argument to presenting this case on that, or using that argument, whereas, in the other case, in essence we did not care. so, i can't support this motion. >> commissioner antonini? >> i had some of the same thoughts here when i read the considerations and i, you know, generally, i am more supportive of being probusiness and

allowing this landlord and the establishment to go into here. and there seemed to be no objections and even though the concentrations seemed to be a lot higher than what they should be, you know, i am willing to overlook it, you know, and i think that you have to look at this whether it is beneficial or not just because it is a privately owned or locally owned establishment does not mean that it is beneficial and if it is formula retail it isn't, i am glad that commissioner sugaya looked that up to say that we don't want to be hypocritical but i am going to vote for this to make the point that this does not seem to make a difference maybe you can explain why the staff is recommending it. >> sure, i believe that the... well, in the past, there has been an over concentration of eating and drinking uses. we have already supported it if

it proved to be a complimentary 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.