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 see in this image, and

whether the short yellow and red line and that is where they are proposing the 639 and the three buildings to the north have a deeper set back. and and but, as you can see all of the other buildings or most of the other buildings on the block do not have a deep rear set back and a lot of these are rh 2 buildings that have two units in them and although there are single families in there as well. and here is an image from 1938, and you can see our two structures right there and none of the other buildings existed and these buildings that are outside of the code or have deep rear set backs are extremely old and they were built before the code and not only is it not logical to base the variance on the homes it is in violation of the basic california land use law. and also these structures at that time we were, they used 6 or 8 lots and you can see these huge yards. and there is again, from google

maps, all of the blues of the structures and you can see the green space. finding two, unnecessary hardship, sxf that they need that they need the extra square footage to be able to build rh 2. and entire block is rh 2 and however over 60 percent of the homes are single family and a single family is not viewed as negative by anyone in the neighborhood, if they can't fill what they deem large number two units in the structure, build a larger single family unit. >> okay. >> and another variance they got was there was not enough open space in the rear unit and so they are saying that there is enough space in that open space and it is actually eli's backyard that they are counting as open space and the only reason that it exists because he does not have a big rear set back. >> okay. so, this is back, and that was another point that i am making

it was mostly the rear deck is the back 15 feet and underneath the rear deck that is not usable livable space and so you can look at it as just a deck. >> and okay. this is a very important one, finding four, that granting of such a variance will not be materialal detrimental or injurious to the property or the improvements in the vicinity, that is untrue, the eli property will be negative affected and the privacy will be compromised and they have windows looking into their backyard, where the variance was not granted we would not have this issue, my property to the north... a towering instruct you are, and the front variance it is going to shade the front of my house and in the back it is going to add shade there as well and i plan on putting on solar panel which is not going to happen with the 14 feet in the back that will reduce the efficiency that i

will be able to get out of it. and allison property to the east or behind it, again, the shade issues and also, the minimal green space and she is worried about drainage and a deep slope and not a lot of green space for that. >> you will have time on rebuttal. >> how many more slides do you have? >> ten more >> let's hold it then. >> okay. >> could we hear from the variance holder now, please? >> what i did was i put together a basic time line of some of the events so i can read through this, but basically, we had initial neighborhood out reach meetings

back in january and february of 2012. and we met with the neighborhood design renew committee who all praised the building's design. and we had actually redone our neighborhood out reach meetings because of the tech caling of not providing the envelopes, and we actually notified the project twice to both commissioners and neighborhood groups and neighbors. and then, we had a variance hearing set for december 5th, and our first contact with any neighbors came on december 2nd and at that time we met with most of the neighbors here, and who are party to this appeal. and most of their concerns at that point dealt with on street parking, with the green habitat and with the safety of the garage doors and typically the things not relating to the

variance, or not necessarily relating directly to the comments that they are making at this time. and i will also say that the appellant who was just speaking, we actually had e-mail communication with him while he was in contract for the property. and as part of the disclosures for the purchase of his unit. we sent him drawings and described the property and he had some concerns about whether or not there would be an opportunity for 639 to expand to the rear yard and we assured him that that would be required with a variance, and we did not see that as being a sposbility based on what we understand the variance and when those can be granted. we assured that was not part of our plan and for this project and did not think that was happening, that was the only concern that we heard from 637, and the neighbor to the opposite side we actually had communication with during the 311 process regarding concerns for property line, or windows that were facing towards the property in the rear yard.

as part of this 311, process and as noticed during the variance hearing, we actually removed those windows from the property so as to not to create any privacy concerns. at that time we accepted those changes and that was part of the variance decision. and i will also just want to show, this diagram here. and it does come up. >> i do want to stress the fact that any of other place, or many other places on the block, this building depth would not be appropriate as i think that demonstrated by the appellants, and in this situation, however, we located between the two of the deeper buildings on the lot. what we have done is we have tried to respond directly to the specific site constraints and the extension, or the deepist extension of the building matches up with the deeper buildings of the north and the shallower part of our