mall management, to voice any objection or decent. and may i also mention that the two stores that we are directly in front, i mean they love us out there, they also signed the petition to keep us out there. >> okay. i wanted to ask, sorry. i'm looking in your brief for statement of the damages or the time or the amounts of the loss of business he stated here. and i'm looking for any calculation of that loss. did you... do you have a number? >> i did not put a number down. we were not there for, they filed a permit on march 14th, to seize operation. >> for how many weeks? >> until april 2nd.

because that was when we received notice from the board of appeals that the appeal was dismissed due to lack of subject matter jurisdiction. >> okay. and so for that period of time you were not operating? >> not there, no. >> okay. >> okay. how many locations does kettle corn star have? >> we have two, >> where is the other one? >> the other one is further down by coffee bean on fourth street and the address is 773, market street and so that is like 500 feet away. >> okay. so no others in the city? >> no. just those two. >> what was the cost incurred when you got the permit? if you can give me a ballpark? if you know? >> there were a lot of fees involved.

>> right. >> you have to pay the health department fee >> you have a ballpark ago arrogate? >> a few though dollars. >> how many people work at the cart? >> it is me and my wife. >> okay. >> thank you. >> thank you. >> thank you. >> we are going to hear from the department now. >> good evening, commissioners, from the department of public works, a little history behind this permit, on march 17, 2011 we received an application from the permitee in approximately that time we also sent off the 30 day notice through the mailing and the notice was provided to us through the radius services. we have a copy of the all of the addresses that this was mailed to and the requestor for

the jurisdiction would like to hear that address was not listed on this mailing. and one thing to note, is that the legislation is set up for all of the businesses are notified and so i am not... i am not certain, how the business is defined through the radius service and through the affidavit when they make that initial finding. and what happened is that during this 30-day period the department did receive the objections from the neighbors in the area, and we did provide notice through the newspaper of a public hearing over the merits of this location through the san francisco newspaper. and we had a hearing, a director's hearing on this case and in november, of 2011, we had the hearing in march of 2012, we released the hearing results after careful, evaluation to approve it and

the th and fire department certificates and we approved the permit in july of 2012, quoting the sfaf the business day that we operated shortly there after. and in february, towards the end of february we received an objection from west field llc. >> it was approved what day? >> july? >> dpw approved the permit july 17, 2012. >> and you got an objection when? >> february 20, 2013. >> okay. >> and we renewed the permit march 11, 2013. and that was on the 14th, the west field appealed the permit to the board. and what happened was we received some requests and we wind up having to check with our council from the city attorney's office, who determined that as stated, that these permits automatically approved and normally it would

not be appealable unless it is overriding reasons, and there are several cases where we actually had people objecting to the renewal and we do hold a public hearing additionally pending the final decision. in this case, again, the objection were again, based upon previous objections of similar foods, odor, congestion which has previously been discussed upon the hearing and upon the director's hearing back in november of 2012. the information that we have shows that we did provide notification, and based upon radius services it appears that there are over 40 letters that were sent to various occupants within west field mall. and there as stated we have a

notification through the newspaper agency, as a public notice of a hearing. and that was posted, that was also a public record. so we believe that they were sufficient notification in this place to the general public. >> okay. >> we don't believe that we did anything wrong. >> okay. >> do you? are you finished? >> yes. >> all right. >> when i first glanced through the brief, i saw the map and i said, i thought that the location was on holiday plaza, and when i read through it, and i find that it is not there, it is actually across the street from the radius, the 300 foot radius, does that make this application defective? >> as it relates to the appeal

for west field, i will suggest not. because they were notified, specifically in this case. >> i don't doubt that. but, just thinking in and i am not trying to create problems for the permit holder, but the fact is that you know the application is predicated upon a certain notification requirements. you are correct, but in this case the location was across the street initially and through a variety of reasons it moved from one side of the street to the other and further moved the proximity another ten to 15 feet further east and so the location changed. >> i see, it was correctly radiused? originally? >> correct. >> okay. >> so would that require an additional notification? >> sorry. did i interrupt you?

>> if the location of the food cart had moved, would an additional notification be required? >> that is a good question. i would suggest as a matter of scope in this case, you know from one side of the street to the other you are looking at this at 60 to 80 feet or maybe 100 feet. >> if you move that radius around there is new businesses that should have been notified regarding the application, correct? >> that is a possibility. what is happening is obviously on market street, these are very large lots and so the notification radius would not have necessarily changed specifically in this case. and, the notification, and this was... this permit was actually in the beginning of the

initiation of the program, so there has been some modifications or adjustments based upon what has happened since, and we need to renotify as appropriate and but at that point in eat valuation it did not seem appropriate to notify. >> that should not effect the notification radius, right? >> so even though there is modifications in the new legislation, the notification process should still be the same in regards to the radius, correct? >> that is correct. and then in this case, in the very beginning we will have the list and there was obviously the merchant identified the specific location. okay? for the reasons and i am not exactly certain the reason, at that location, they requested the merchant to relocate across the street is one possibility and based upon that

information, we are trying to determine, we made an internal evaluation and with the additional notification be required specifically and in this case he went from one side of the street to the other in a similar location, we determined that given that it appears that and i am not sure that it appears that it might have come from another city department that made the request, that it becomes some what of a burden to the merchant. and to again, reestablish in the notification requirement and submit new postages and wait an additional 30 days for the notification. >> is there any type of record regarding that decision to be made to not to notify? >> i will have to look at the files. >> any changes to notifications procedures that would have taken place following the issuance of the permit at issue? it would not be retroactive. you would not retroactively

apply those provisions to the previously established permit holders. >> no. the only time that the department would do additional notification is when there are or when an applicant and request, a modification to the duration and the time that they would operator does it change in... >> but assuming that all things are otherwise the same? it would be no need or the new law would not apply retroactively unless there is a change. >> that would be correct. >> also, with respect to concerns that if the change of the location would have potentially affected other s that were not within the radius, that is speculative here because there is no one objecting while this entity has been in place for almost a year. >> that is correct. >> okay. >> i have one more question, regarding the code.

and i'm not that familiar with all of what is within your jurisdiction and the public works. but, the notification itself, we spent a lot of time talking to the requestor about this, but, must it be on an owner? >> because there is the property owner, who could be an off-site owner they might have a mail box but must it be served on the owner of the building? because the tenants have come and i have seen the other tenants object to the facility and sometimes they bring the landlord and sometimes they are here on their own. >> actually the commissioner, the requirement is different. for a regular operation, the businesses are notified within 30 feet. and when this late night operation, and the evening operation, and then the residents and the property owners are notified and there in lies the difference. >> and this one it felt, where is the, or the hours, do the

hours fall within the evening hours too? >> yes. >> in this specific case it does not, the merchant starts at 10 a.m. and ends at 6 p.m. >> would that then not require the property owner to be notified? >> that would be correct. >> thank you. >> i don't have any further questions. thank you. >> thank you. is there any public comment on this item? >> okay? seeing none, then commissioners the matter is submitted. >> i have a question for miss murphy. >> you accept that last answer as to the reason why west field did not get noticed? >> well, with respect to which

notices, this verses the property owner, the code has the distinction that if it ends to six that it goes to the business owners and then if it is after, it includes the residential tenants and property owners. i would note that the big slots are, they don't hand deliver them to the stores they put them with the slots, and box a is there with all of the other tenant's slots and by the admission of the respondent, the service said told them that they crossed check with the ups addresses which is the ups address and the post office address for the business. and so the notion that one business, unfortunately the landlord, would not get the notice when the boxes are all there, and the slots a, is there with all of those other slots, and that is their postal address and it is perplexing and again, this is not kettle

corn's fault and they are responsible and we realize that this is a difficult situation, and we feel bad about it and we feel bad that we have to be here. >> i think that she has raised this and please describe for me further, when you say slot a, what does that mean? >> the way that the mail is delivered, at the west field center, there are two sets of boxes and the postal service comes in the worker and does not go to... >> i understand. >> so the slots, for the west field center box a is there and it is a slot within that box where all of the central... >> so slot a is for all of those. >> no that is just west field. >> so do you want to speak to that? >> let me explain how it works.

>> there is 840 market and building one and 865 market and the emp orium side on each side of the building there are central mail boxes. all of the tenants use 865 market street. keep in mind that some tenants if they are a national tenants do not request a mail box because they want everything sent to their corporate address wherever that may be. if a tenant was not requested a mail box their name will not be on the two central locations. when a new tenant comes in we notify the postal service of the new tenant and we are able to box and then that is how the mail is delivered to each of those locations. so, 865 is the general address for all tenants whether they are in building one or two. and 845, 865, and if the tenant does not request a mail box it is not there but it will show up on the distribution list because that is just how the floor plans are of the center. >> i understand the mail box. >> our box is in there, on even

though we are physically located in 845, market street and our address is 865 and we have a mail box that says... >> yes. >> correct. >> i have a question since you are back up here. given that there was this two weeks when the kettle corn was operating and appeal could have been filed, were you aware of that cart having started business? >> i personally was not employed by west field at the time. so i was not aware of that until i i started approximately eleven months ago. and that is we had already been working with mary on this issue. >> but then apparently nobody else or whoever your predecessor was... said anything either? >> in other words, the business started up and ran for two weeks and there were, nobody tried to go to management and say why is this out here? >> what i can tell you is that

the... i think that you know this, but the whole market street area, some of the locations are under the jurisdiction of the arts commission and they issue permits to people who are selling things out in front to the arts commission permit and others, now dpw has this permitting authority as well. and so what has happened and what was happening in the past was that west field was trying to keep track and when they got a notice they would take issue with it, because they thought it was at the debtment of the ter ants. they did protest and with respect to this when they realized that this was something and yet another permit that had popped up and i have to apologize that i really could not recall, exactly when that happened, but at some point, they said, wow we realized and went through the records and we never received a notice of this and here they are and they must have gotten a permit and i think that it took the digging in to find out that they got a permit and when it

was issued and all of that. but, i, i could not recall the specific dates of those events. >> and again, you know, i think that we should or we need to acknowledge that west field, you know, maybe they did not call it and maybe there was a collective decision that was a bad one on our part that we thought that the thing to do was after digging in that after realizing that the ship has sailed and they have the permit. >> we have heard that already. thank you. >> i have a question about that, you said that all of the mail boxes are at 865. >> market. >> and i am just looking at what appears to be the permit holders' submission and there is 845 with several suite numbers. >> what are those? >> are those mail box? s >> i am in the process with the united states postal office to figure out this postal system, 845 is what the tenants used

prior to the development. so he will deliver at both locations whether they have 845 or 865. >> are there boxes in the 845? >> yes. they still exist? >> those still exist. >> those are managed by the united states postal service boxes on 865 are managed by west field management. >> okay. >> frustrating. >> okay. thank you. >> do you have any more questions? >> anybody else have any comments? >> no questions i have comments. >> comments, go ahead. >> i would deny the jurisdiction request. i find that west field was not entitled to notice under the code. and even if they were, i find that the permit holder exercised due diligence, and in any event, west field had constructive notice given the passage of time and the fact

that the permit holder was operating right in front of their front door, i don't find anything to west field and also given the fact that tenants got notice and had the opportunity to protest and did not. based on that i would deny the jurisdiction request. >> i'm of the opposite opinion, now. and the reason is that the following. at first, i was probably very similar to commissioner hurtado that of the opinion, that the issue here, however, is two-fold. one is west field have a right to due process and an appeal in front of this body? and the correlating element of that is that there is no

specific definition as to what is a business? and did they have a physical mail slot there? and it should have been identified as such. and therefore, the process was in my opinion an error, and they should have received a notice, in their slot because i don't think that a mail directory service, can pinpoint what is a specific business in that building or not. okay. >> any other comments? >> you don't have to, i just if you don't have any. i will share some of mine, i am more along, my thinking is more along the lines of commissioner hurtado. and principlely for the business is not under the code required to be notified. i think that is easiest for me to look at that and rely on that.

i think that the constructive notice is important as well. because, if you see and have an opportunity to see the activity that is impacting your business, or potentially impacting your business, that is the time to make an objection, if you didn't get technical notice. and in this case, i don't believe that technical notice was required. i think also that equities don't rely in favor of west field and they are in strongly in favor of the permit holder for having done the right things and based on the code did not or was not required to serve the business, given the time periods of operation. so. if we have a motion? >> sure, i will make a motion to deny the jurisdiction request based on the fact that the permit was properly issued.

>> okay, could we call the roll please? >> on that motion, to deny jurisdiction? on the basis of the permit was properly issued? commissioner fung? >> no. >> president hwang? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you. >> the vote is 4-1, the jurisdiction is denied and no appeal may be filed on this permit. thank you. >> thank you. >> could we move on then to item number five, appeal number v13-046.. this is the zoning administrator. and the property is at 639 peralta avenue protesting the granting on april 5, 2013 to yakuh askew to a front set back dwelling unit and exposure and rear yard variance and

construct the new two-story, two-family dwelling on the vacant lot and we will start with 7 minutes. >> this matter was presented without actually getting to the merits because it was continued. and that i am friends with the permit holder's spouse. >> i don't think that friendship has or would prevent me from being unbiased and being able to hear this today. >> very good. so, we will be on the side here, and good evening board. and i have a lot of slides here. and we added some information that you don't have copies of this and i do have hard copies if you would like one and that being said, i'm doug and i am going to speak on behalf of four of us. >> do you have a hard copy? >> i do not. >> do you have extra copies? >> i do. >> we would like the copies,

thank you. >> do you have one for the zoning administrator as well? that would be helpful. >> and the permit holder? >> and certainly the permit holder. >> i will be going quick. and so at the basis of our appeal here is california law says it may mot be granted based on the existence of neighboring non-complying

building and at the core of the variances, and granted it is based on the fact of other neighboring non-complying buildings and so going against the california law. and no person has the legal right to a variance and granted sparingly, and so here are some other local cities that right in more depth against the code. and why are we here at the 11th hour of the board of appeals and why did we find a discretionary review which is the right thing to do if we were organized and opposed early on? myself, i am the neighboring to the north and my wife and i just purchased that property in mid novemeber it is our first home and moving in, and to visit my wife's family in brazil and did not have the band width to think about it and did not know that we had the right to appeal it. when we were closing on the house we had to sign-off on the

plans saying that we acknowledged them and knew that it was going to happen there was a structure going on next door, it was a negative part but we moved forward any way. allison perry who is directly behind who is unable to be with us tonight, she also purchased the home recently in july of 2012 and did not move in until october of 2012 and new to the project and everything and her mailing was sent to the previous owner even though they was the owner at the time that it was sent out. >> standing right next to me here, again, we had difficulties with how the notification was going out. and trying to work with him and his problems with the variances that we will be able to get

into the neighborhood in general. and there is a meeting set up and there is a lot of people on the 600 block that were against this and against the variances being granted. and finding one, let's see, the main thing about this, is that there is undue hardship with the property that they need these variances to be able to build the structure as it is designed. and their first statement a, and we said that it is not true, and on the 600 block, there are 36 units on 18 of the exact same size plots that managed to fit in two units and meeting the rh2 requirement and not meeting the variances and here is a house or an apartment that sold recently and there are four units on the two lots and it is a 600 square foot one bedroom unit but that is the size of the unit that meets the code in rh 2 in the special use

district of vernal heights. >> speaking about non-complying neighboring buildings, my building, 637 and 633 these are very old structures mine. >> i am going to stop you because you are talking too quickly. and the time will stop. >> your property is one of the non-complying properties? >> yeah. >> correct. and so, i am the property directly to the north and so as you can