>> i am a second year student at the college of law and i am working under (inaudible) in the housing klen ing clinic and i will be representing these tenants of the golden gate street property and we request the jurisdiction because on june 4th they filed with the planning department requesting notification for all permits in the building after receiving notification that they were applying for a building permit. but before, the permit had been issued. and the tenants feared being displaced from the homes during the course of these renovations as they would have to leave the property during that time. the permit in question was issued on june 24th without any review from the planning department as a result of that,

the tenants were not aware that the permit had been approved until july 15th when the counsel fox happened to be checking the department of building inspection for another matter regarding inspections of the unit. the tenant filed this request for a jurisdiction on the same day after being notified that the permit was issued it was 16 days after it had expired, the reason that it was 6 days late because they rely on the notification, regarding the issuance of the permit and receiving notification from the planning department or from the permit holders themselves and the suggested changes are significant enough to require the approval of the permit and the change that the permit is seeking and including the foundation of the building and the floor joists. tenant john who is a carpenter believes that this will take at least three months which is a

significant amount of time for displacement and should be subjected to planning department review. the owners of the property have not been responsive with the tenants when they asked for more information, where they can keep their items during the displacement or information regarding their renovation plans. and they are not seeking a permit revocation of the permit or a delay in the process merely seeking to petition the permit to prevent a displacement from the affordable housing and vn living in the units for more than 12 years, is that right? >> they request that you grant the jurisdiction to grant an appeal. >> do you want to respond to the permit holder's claim in the brief that your institution knew about this permit? >> yeah that is false, we knew that they were applying for a

permit but never received notification that it was issued. they put a notice that they were applying for a permit in may and i forget the exact date. may 22nd. but, we never received notification that the permit had been approved and that is when the 15-day period would start. all right. >> thank you. >> thank you for your time. >> could we hear from the permit holder now? >> good afternoon, vice president lazarus, and commissioners, my name is patterson for the permit holders. and i will very briefly tell you about the alleged basis for this request, about the notice that the tenants actually had about the basis for the appeal and that is lacking. and about the reason that we are here today.

the requesters alleged that the planning department failed to provide notice under the notice system or bbm system which gives notice of planning review permits. and but the requestor did not apply for the bbm notice until after the permit had already been filed and reviewed. the requestor's attorneys are simply off base with this. the criteria only looks at city actions and not permit holder actions. but i will mention that the permit holder gave the requesters, even more notice than was required, notices were posted on may 27th, and june 6th posted on the doors and mailed to the tenants which is not required and upon issuance. on top of that, the attorney admits that she was monitoring the permit tracking website as all appellants are supposed to do and so they had plenty of notice, more than double the notice that is required.

the requestor wants to appeal the permit because it should have received planning review. but this is a non-subnative permit to cost changes with no new plans, the original permit that this was in fact reviewed by planning and received approval. and back in april, and the requesters never appealed it. and so if they knew about the permit and chose not to appeal it and had no basis for an appeal why are they asking for jurisdiction today? the real reason is leverage in a different case, my boss, reached out to miss fox, the tenant's at the pointer before the permit was issued and she blew him off.. and my boss refused to buy out a tenant in a different building at 642 rush avenue who she represented she responded by threatening to appeal this permit. again two different tenant and different buildings, and this

is documented in our exhibits a, f. >> e-mail trails and so miss fox is either trying to trade our clients off like baseball cards or trying to bring a political issue to the board of appeals, either way of which is inappropriate. he is going to speak about the need for this work. >> i am the peer reviewer and the engineers were not available and ron hamburger one of the leading engineers in the nation and there are substances and foundation issues and we have a retaining recall and this permit needs to move forward and i am concerned about the safety of the building. >> and i am the construction manager. and representing the owner. and i concur with what has been stated. and one of the tenants actually came into our office inquiring about the permit after our

first posting. this is about a completely separate building or it is about trying to squeeze more money out of the owners, either of which snot a legal basis for granting late jurisdiction after the requestor simply chose not to appeal. and thank you. >> thank you. >> and any departmental comments? >> mr. sanchez. >> thank you, scott sanchez planning department and does commissioner fung have a long history of the board of appeals dating back 7 years and previous issues related to a fire escape which was proposed to be added to the building and

concerns about impacts on the potential historic resource here and it has been addressed and they have given a new fire escape that was appropriate and what is at issue here is a revision permit and the revision permit was not routed to the planning department and there is a block and notification request on the property that has been in place since early june. the revisional permit that this permit revises, was submitted last october and issued this last april on april 18th. and that permit was to repair the basement and frame and replace the basement and it was routed to the planning department to review and we review ited and approved it and our approval was from october. and so, we that permit again was issued and this permit is a revision and the description of this, it is a revision to this previous permit cost revision and it does not actually

include any new plans it was all work to the original plans on may and may 16th and was issued on june 24th that was not routed through the planning department and in terms of determining what permits get routed to the planning department that is in the roll of the department and planning inspection and typically if there was a revision to the permit that we had already reviewed we would see the revision permit and unless the event that revision permit has nothing to do with planning and that it can be a difficult call to make and in this case, the revision permit does say as per the original plan there was were no changes in the plan it would be if they approved for the permit and they made the changes for the plans and they were able to confirm that they were code complying and there were no changes to the plan and it is unclear what changes if any could result from the land use impact and it said that the

clarification of the bbm and that is a notice. when we review a planning department and the planning department reviews the permit it is not a notice for an issue ans and only those for the planning department. and we will give a ten day notice to the bbm requestor to with which they can request more information or request a ddr and they will approve the permit and in the permit righting sequence we are always just typical and generally always the first department to review a set of plans or a permit. and so having known what this revision permit on the 16th and having been routed to the planning and they have been able to approve this over the counter on the same day on may 16th. and that would have been a relevant date for triggering the bbm notice and not the date of june 24th. and once the permit has

completed out the review and if someone filed a bbm request, after that, but before the permit has been issued. we don't vai mechanism to recall it just in order to provide the notice and so we do it and the bbm notice again is while it is under our review. and so, in this permit was not routed to us and has not been routed to us and i think that it is likely that it would have been approved and revised and approved. and so that is some information, that may help the board in their decision making. >> if it had been routed for the planning it would not have been routed because the plans were the same? it is just a revision? >> that is my assumption for the determination that dbi made and not routing because there were no changes. >> we will hear from the dbi and the second question is the

request for the jurisdiction request is based on the fact that they don't want to be displaced while this work is ongoing and so would that be a consideration that planning had reviewed it would take into account. that is why we have the rent board for and to address those when the landlord tenant issues and although, this board has taken that into consideration and you know, certainly, the planning commission has the same level of discretionary authority to consider the matters as this board does and make it just into consideration and just at the staff level review and that is what we have the rent board protections for. >> and mr. sanchez, you are pretty sure that the plans that is on the basis of this current permit are exactly the same as the previous ones. >> yeah, excellent question and there were no plans for it, it is my understanding that the revision permit did not have plans because there were no

changes. and so... >> it was just a permit form itself. >> that is my understanding, and so it was evaluation issue and i think that they changed the cost of construction to reflect, you know, i don't know, the accurate cost and so maybe that is something that the department building of inspection could shed more light on. >> thank you. >> thank you. >> typically that permit will not be routed to planning, and it was a form three, and just for information purposes, we have a form that is a form three/8, and the form three is a job that is submitted and goes through the plan of the youth process as opposed to a form 8, which someone will take through and walk over the counter and in this case, this was submitted and went to one

of our engineers, and we had an issue a housing clearance. and the engineer to determine the valuation was correct and approved the permit and so it was a routine approval and as well as the notification that was required for structural and the permit was issued. and in the previous comment, was stated that in most cases when the original permit is reviewed by the department of city planning, if there is a revision, it will go back to the same review agencies that provided the initial clearance and there are occasions when the applicant or the permit holder would not want to go through his extra steps in the revision did not effect those and however, we require that those agencies review it and on occasion, although, the staff will make an error and we will not have the planning review that. this particular permit will not be reviewed by planning if the scope of the work and the permit is to adjust the evaluation. okay? >> thank you.

>> is there any public comment on this item? >> okay, seeing none, commissioners the matter is submitted. >> on the 50 original permit was not challenged. and since the notice was normally provided by the bbm system, was not submitted early enough to be in the original review, i find no basis to accept jurisdiction and prepare to deny it. i don't have anything more to add, i agree. >> i too, agree. >> i move to deny, the jurisdiction request. >> thank you.

>> could you call the roll please? >> we have a motion from commissioner fung to deny the jurisdiction request. on that motion, the president is absent, commissioner hurtado? >> aye. >> vice president lazarus. >> aye. >> commissioner honda. >> aye. >> thank you >> the vote is 4-0 to deny jurisdiction and it is denied. and no appeal may be filed on this permit. thank you. >> thank you. >> so with the vice president's consent we are going to call item 7 next. appeal no. 13-070friends of yerba buena, 765 market street residential owners association, matthew schoenberg, joe fang, margaret collins, paul sedway & ron wornick,

appellant(s) vs. planning commission, respondent motion holder: 706 mission street llc706 mission street. protesting the adoption of findings for a planning code ♪309 determination of compliance (rehabilitate existing 10-story, 144-foot tall building and construct a new, adjacent 43-story tower, reaching a roof height of 480 feet with a 30-foot tall mechanical penthouse). motion no. 18894. for hearing toda. >> we will start with the appellant. thank you members of the board. and the claim here is that the planning commission abused the discretion of 309 of the planning code because it made determinations that do not comply with 295 and because it made determinations that did not comply with sequa. so on the section 295 issues, the planning commission voted to increase the acl, or the annual limit for shadow and to allocate that to this project

entire and with that increase or action was not going to have a significant effect on the use of the park. and the state law that applies here, requires the planning commission to trace the route that it takes from the evidence to the findings and the findings of no significant effect is not supported by the evidence and did not provide any route between and several respects. one is that the 295 decisions are actually not enforcable because it is not clear, what the final number is in terms of total maximum that would be permitted. and to demonstrate that using the motion holder figure of 38.30 percent for the amount of shadow that existed on union square in 1989. so, we start with the decision on the transit center plan in 2012, and put that on the screen.

it is page seven of exhibit 7. and that is showing up on the screen very well. what the planning commission did was look at the amount of the acl that was left after the 690 market street project in 2003 in the yellow item in the row. and how much will be needed for the new project and the buildings and that is 0.11 percent and so we need a total of 0.19 percent additional acl. but what is that going to get added to? >> exhibit 16 which was not been submitted yet but i will when i am finished and if you add that to the 38.30 percent of cumulative shadow, the total existed in 1989 on this park according to the motion holder, you get 39.94 percent and that

is actually not the right calculation because if it is about the 0.02 percent that was added by the 690 market project and if you include that in the second calculation here on exhibit 16, you will end up with 38.15 percent and so we are left in an uncertain position with the total maximum shadow that will be to allow for the new buildings on this park and that is an abusive discretion and it is not enforcable and does not apply with 295 and section 309. and when you, carry that forward for this project and the same problem allows us what are you adding the 0.06 percent increase for this project to? are you adding it to 49.3, or 38.15 percent? not clear, those calculations ends up with the numbers, and they are in the bottom part of 16 and i am not sure whether you agree with us but it is a

0.06 or agree with the planning department that it was effectively 0.01 percent increase regardless, you are adding it to an uncertain number that could go in two different directions. and another problem with the commission's decision is that in 1989, the qualitative criteria for increasing shadow was not to avoid additional shadows during the midday, that was to be used according to the 1989 policy memo, to get one up to 0.1 percent, which is the quantaty criteria and it says, the memo says on exhibit c that is an additional 0.1 percent of the current shadow should be permitted if it meets the criteria for the park. and so instead of using the qualitative criteria to justify a increase up to the limit they used the criteria of avoiding

the shadow in midday is to go above the miment of 0.1 percent and so that reverse of the limit of those two criteria is inconsistent of the policy and another example of not connecting the dots. and so the third problem is the current decision is based heavily on the notion that sunlight was added to the park by the macy's remodel, what is the relevance of that? the suggestion is that while we have a bunch of sunlight, we can allocate to this project but the finding on this project was based on what we call the proxy me tricks and there is no corresponding of the macy's sunlight is that going to offset the impact of this project, in terms of time of day and area of the park, there is nothing to connect the dots between what it readded and

what this project is taking away in terms of sunlight on this park, and finally, the proposition k requires the commission to adopt the criteria and they have never adopted a criteria that it did not want to change. >> that is now complying to continue to change it every time that a new project comes along to add more shadow. >> and another basis and for the board to over turn the decision. finally, on the sequa issue, i don't have much time and so i am not going to restate the claim but there is a dispute between the parties about the economic feesbility of the reduced shadow alternative and they can produce some rebuttals to my client's critique of the original analysis and without going into great detail, my economic involvement and the

rebuttal to that rebuttal, which the applicant had when they filed the briefs on the 25th and since the 23rd of this month and so i would ask the board to let me put those into the record and for you to consider them, and so those are i have several copies of those additional rebuttals and letters dated july second, or july 22nd, and therefore, a while after we filed the opening brief they could not have been submitted sooner. >> >> if you wish to accept those into the record you would need to acknowledge that otherwise, you know it is up to you whether you want to or not. >> i will accept them >> and exhibit 16 on the screen is also a summary of the calculations thank you. >> yeah. >> before you sit down, less documents have all been distributed to the motion holder and the department?

>> they have, we tried to submit them a couple of days ago and they were rejected as not the proper time to submit but at that time i provided them to the other parties. and with the exception of sibt 16 which i think provides them at this time. and recommended and this one here. >> thank you. >> >> make sure that they do have those. >> they have that already in. >> we don't have it here. >> we can hear from you now.

>> good evening, vice president lazarus and commissioners and bradish, and the appellants have appealed the determination and request for exceptions for the 706 mission street project and in fact they have not alleged non-compliance and instead this is another, long line of attacks by a series of neighbors who oppose the height of this budget and we respectfully request that you deny the appeal and approve the action of the planning commission. and before i address the arguments i thought that it would be helpful to get the background because we have been talking about this project for a long time and we have never been able to present it to this board. the architect is present if you have questions. 30 mission street and it consists of three parcels and the building that is owned by project sponsor and it has been

identified for over 20 years for the future home of the museum and the garage and the agency parcel and the jessy square garage will be conveyed by the agency to the agency and to the project sponsor for agreements that were approved earlier and that will complete the cultural district that was part of the redevelopment plan. and the project would rehab tait the building, and construct an adjacent 480 foot, 43 story teller and provide a permit home and include up to 190 residential units and 4500 feet, and operated by the mu see sxum it the project has been approved by every city body, and there are many, including the historic preservation and the planning department and the park and rec commission and approval by the

board of supervisors. and they have challenged every appealable action and every non-appealable ones and each time using the appeals as a vehicle to challenge the height of the project no matter what the substance of the permit at issue and now they used thed 309, appeal process to again, challenge the 295 actions tonight that you determined were not the proper subject of the jurisdiction, every city body that has had the justicersing dition over the height and shadow has approved it, in addition, the project was substantially arise to address the concerns raised by the community, as originally proposed the projects would have been 605 feet tall and cast over 950 square foot hours on union square and as a result of the process, the project was redued, to 480 feet, and cutting the shadow on the union square by 75 percent from the original proposal. and the city has properly determined that the project would not have a significant

shadow impact within the meaning of both proposition k and sequa and in fact the shadows on union square would never fall after 9:15 a.m. and would fall on a few weeks a year at the early hours in the morning where the park is in low usage and thus the eir which was held by the board of supervisors concluded that it would not have a shadow impact on public open spaces including union square and the planning commission and the park and rec commission to determine that the park would not have a significant and adverse impact on the use of the square of prop k and appellants to the process to revisit the city decisions but the appeal lacks merit. as you know the construction of the new projects downtown and provides for the review of the design. and confirmation of open space requirements and for authorization of certain exceptions to the planning code. the planning commission granted

the determination and exceptions for this project. in order to reverse that planning commission action, the section 309 requires that this board find either that the planning commission misinterpreted the planning code or that the planning commission abused its discretion pursuant to section 309 not to proposition k. this appeal does not allow a single interpretation of the planning code or a single abuse of discretion pursuant to section 309 and meritless and first as you know the appeal makes the attacks on the planning commission's actions to increase the shadow budget on union square which you previously determined tonight are not within your jurisdiction and second, the appeal challenges, the planning commission determination that the impact on union square would not be significant and making an, allocation to determined not to be in the jurs dition, to the extent that you