everyone watching listening or reading about the share, to take the time to register to be part of the program, in fact, sign up today and find it out for the compute tomorrow and especially with the bay bridge closed. there are a lot of people on the bay with our bikes and having the fun with it over the long holiday weekend and it is easy to do at bay area bike share.com. bay area bike share.com and so now let's go over and get some ribbon cutting down and launch this program and get on the bikes and follow me through the station, thank you everyone for being here this morning. [ applause ]

>> >> >> good evening. welcome to the august 21, 2013, meeting of the san francisco board of appeals. the presiding officers is our president chris hwang and

joined by our vice-president lazarus, frank function, honored a hurtado. at the controls is the board as legal assistant pacheco. we are joined tonight by representative who have cases before the board. anthony greek oh is here. chief of department of building inspection. we have department of public works, department of building inspection and bureau of urban forestry. at this time mr. pacheco would you please go over the meeting guidelines. >> the board request that you turn off all pagers so you do not disturb the proceedings.

please carry conversations in the hallway. appellants, permit holders and department representative each have 7 minutes to present their cases and 4 minutes for rebuttals. people affiliated with these parties must include their comments within the 7-minute period. people not affiliated with the parts -- parties have to 3 minutes to address the board, but no rebuttals. members of the public who wish to speak on an item are asked but not required to submit a speaker card to board staff when you come up to the podium. speaker cards are available on the left hand side of the podium. the board also welcomes your comments and suggestions. there are customer satisfaction survey forms on the left side of the podium. if you have questions about a rehearing or rules or rehearing schedules, please speak to board staff at a break or after the meeting or call the board office tomorrow

morning. the board office is located on mission street between did van ness avenue. this meeting is televised on sfgtv. thank you for your attention. at this point in time we'll conduct our swearing in process. if you intend to testify at any of tonight's hearing and wish to have the board give your testimony evidentiary weighed, please stand and raise your right hand. any member of the public may speak pursuant to the right of the sunshine ordinance. do you solemnly or affirm the testimony you are about to

give be the truth and the whole truth and nothing but the truth. >> we have a house keeping, the parties have reached a settlement and this matter will be withdrawn. >> calling item no. 1 which is public comment for anyone wishing to speak on tonight that is not on the calendar. >> seeing none. commissioners? nothing. item no. 3, adoption of minutes. are the meeting minutes of the board meeting from august 13, 2013. any changes? >> i will move their adoption. thank you. any public comment on the minutes? seeing none, mr. pacheco if you can call the roll please. >> on that motion from the president to adopt the august 14, 2013, minutes, commissioner

fung, aye, commissioner hurtado, aye, lazarus, aye, honda. thank you. those minutes are adopted. >> item no. 4 a. the subject property. item 4a: jurisdiction request: subject property at 1980 golden gate avenue. letter from raquel fox, attorney for john tynan, kurt mueller & jason thrupp, requestors, asking that the board take jurisdiction over bpa no. 2012/10/29/2977, which was issued on april 18, 2013; the appeal period ended on may 03, 2013 and the jurisdiction request was filed at the board office on aug. 05, 2013. permit holder: urban green investments llc. project: repair wood frame in basement; replace retaining wall in basement; rebuild one bay windoww>> item no. 4 a. the subject property. sf 41234 we will start with the requester. you have 3 minutes.

>> thank you. good evening board members, president. there is probably not enough time in a whole day to discuss all the issues so i will focus on the reason we are here. we are here because we are seeking permission to file an appeal even though this permit issued in april of 2013, the tenants just found out recently about it in connection with the revised revision to cost permit that is issued in i believe june 27, 20126789 , there was no notification filed in october of 20126789 there is no posting, no letter, no phone call. if you look at the building code 106 a point 3 that requires notification and

affidavit in addition to other requirements, the basis for this, the policy behind that is to allow tenants to have proper notice of the work that is taking place is the type of work that can lead to their displacement. so the question becomes well, why didn't they know about it? they didn't know about it because there's no notice posted, there was no letter sent, there was no phone call saying we have applied for this permit. this is separate and part from what happened from the second revised permit which is a revision to cost. that one they did post a notice in pay, there's the 15 day period. now, that permit, the revised permit says that all the work says it's in compliance or pursuant to the original plans. the original plans are the plans that support the permit application that was filed in october of

2012. so, it's the same work. and if they need it to post the 15 day notice in the second permit, the revised cost of $50,000 or $56,000 more. there should have been notification to the tenants. there is a very long history involve the tenants and the different owners, prana and she was represented and now is represented by urban green. so, i ask you to grant this request for jurisdiction and i will file the appeal by friday in two days. we are not trying to delay. we are trying to get their voice heard regarding this permit. >> my name is john tynan. we

never got information about this. i have no notification about this. this is why i'm here. it's a failure to communicate by the landlords and their agents. >> could i get the citation that you referenced? did you provide it to us? >> no. i brought it. it was a law passed in the 1980s. it's building section 106.3. >> can you just -- what specific section or provision is the text that you believe will supported your position if you can state that for us? >> i believe that section 106

a.3.2. 3 supports our position. what it says is substantial alterations, notification signed posting and affidavit. in addition to any other requirements for notice setforth in this code which is the building code, the following shall apply: any person filing an application substantially alter as that term is defined by the building official and the department house or residential hotel as defined in 41 section point 4 of the san francisco administrative code, that contains 5 or more dwelling units. this one contains 12. shall pose a fine of 15 inches by 15 inches, 381 millimeter times 381 millimeters in a

conspicuous common area for at least 15 days with the following information. notice that the application has been made. the nature of the work to be performed. the means of object obtaining information from the department and the procedure for appealing the issuance of permit. it kind of goes on. >> do you have the cross-reference to substantial alteration as defined in the code? >> i think chief deputy can answer that. i searched. he said it's a case by case. our argument is that this is substantial alteration because they are changing the bearing wall. >> something you said about this section, the spirit of this section was intent to communicate, make sure that the tenants, not simply the owner would beware of the work. where did you derive that. is there

language text or are there cases. >> unfortunately there is not any case law. i have searched. but randy shaw of the tenderloin housing clinic was directly involved in the 1980s and the intent was to notify the tents -- tenants taking place and the nature of the work. if you look at this building, they talk about a quarter of a million dollars, they knew it was going to be substantial. they chose not to say anything. >> i have a couple of questions. so when exactly did they find out about the permit, do you have a date? >> the first time we heard it referenced on july 30th. i had no idea this had been applied for in october of 2012. immediately next day -- >> you are talking about the first one. the one at issue is

the second one. >> this is july 30th because they did receive notice that there had been permit application for a revision to cost the original permit. >> doesn't the revision permit, maybe you are not the appropriate party to start a new appeals period? >> that's what we were trying to do. unfortunately the notification of permit was filed after the permit application had already been filed and if you recall at the last hearing, scott sanchez said the initial permit application was back in october of 2012. so, i don't know exactly how this worked, but it never went back to planning. >> i remember now. >> so we've tried from the time we found out this work was taking place to stay on top of

everything, unfortunately, i didn't find out that the permit had issued until i went online looking for mr. muler's complaint regarding dbr for the bay windows. >> you are asking to impose certain conditions to protect the tenants that you represent. what authority do we have to do that? isn't that in the rent board's control? >> i don't think it's exclusive. i think definitely there is an overlap. but i think that under -- excuse me for a second. i think that you have the general power to determine how to condition a proposed project and there is case law that is cited in my request for jurisdiction on page 2. in the footnote no. 1, and so our position is that the

permit will affect the general welfare of san francisco by reducing the quality of life for the appellants if they are in place while the work is taking place if they are evicted and it could potentially result in the loss of affordable housing and as we all know there is a limited stock of affordable house are e -- housing in san francisco. also these are two of the remaining long-term tenants in this building that have a long history of having immigrants from ireland and england that moved in years ago when the prior owners were in place and over the years there has been more and more done to the property to make it unsuitable. for example, the easement was extinguished. for a long period of time there was scaffolding in front and fire escapes. they

sealed off their back doors, sealed off their windows. so from our perspective, this is just another extension of what's been taking place over the years. >> did you see the going back to my original question about our authority to impose these types of conditions, did you see the permit holders brief at page 6, they cite a case that is actually not reported. do you have any response to that? >> i'm sorry, let me. >> they cite this case, it's unpublished of course but indicating these types of arrangements, these types of conditions that you are asking us to impose would not be enforceable even if we were to impose them. >> well, i haven't read this

case in a long time, if it's an unpublished decision it's not in any authority. i would have to go back and read it. i didn't give it much weight since it wasn't published. this board has the power and discretion to conduct permits. >> okay. thank you. >> i think we need to hear from the permit holder. >> president hwang and commissioners, i hope you don't mind i take a little bit extra time because there is a lot to be clarified and set straight. i will start by saying this is

actually a pretty straight forward issue. there was a permit pulled issued in april 18th for structural repairs. a number of these issues are light safety issues, and we are now more than 4 months beyond the time of issuance well beyond time for an appeal. the requesters did have notice a long time ago that permit issuance and we have e-mails between council which i believe is attached in volume to her declaration in this matter. i will start by giving you an overview and then respond to some particular details here. there is no change to bearing walls. this question of substantial alterations, the code provision that miss fox has cited here, as you can see

on the overhead, is not applicable and i will refer to chief inspector greko's discussion of this. the permit we talked about is tenant relocation. it's the discussion between the contractor and peer review structural engineer who is here to address the work being done that out of an abundance of caution that it was a good idea to pull a permit to notify tenants in case there had to be relocation. it may not be that they have to be relocated, in fact no notice of relocation has been given. but they were given double the notice, they were given more than 30 days notice at that period board 3 weeks ago decided against that request on the revision permit finding that notice was properly given. they have had a

lot of notice, they failed to read the permit even though they knew there might be a relocation. for the issuance of the conditions they requested, as you will see detailed in our brief, each of the five conditions they requested are literally already granted by the rent ordinance. it's detailed in the chart in the brief and i have printed it here for you. these items are squarely in the rent rules. they already have the protections and if this is something that needs to go to the rent board which i expect it may, this is specifically within the rent board's jurisdiction with each of these issues. and as far as the jurisdictional issue concern here, if you look to the case that was litigated between my

firm and the housing, this is issued. it's not binding authority, it's persuasive authority. the issue this court found that this board has the authority to impose conditions for the general welfare. we don't disagree with that. but when it comes to items of protection with tenants that is found within the rent ordinance already and go to the rent board, the board is preemptied from deciding those issues. >> your time is up. i have a question on that to follow up. are there any other cases or authority that you can cite to that would give further support to the argument that our board here does not have the authority to make this decision? >> there are a number of cases which miss fox cited with the ability to permit or uphold or

revoke permits. the ability for this board tonight to uphold or revoke the permit is certain. the animal -- ability to impose the conditions is not -- >> based on your firm that you had to litigate. anything else? other than submitting a non-publiced non-authority. >> our firm loss. the housing committee won that one. >> is there anything else? anything close, any argument you can make from any other possible authority? >> sure, the tul ran case does cite other authorities and the ability for other board

conditions for tenant protection. i'm paraphrasing tul ran now but those boards falling under the charter and executive session that the board of appeals has in exclusive authority to handle under the rent jurisdiction. the rent board has the authority and i charted the provision in my brief discussing the rent board. >> counsel can i stop you, we are dealing with the issues of the case. not with the merits oovment -- if i may address that point briefly? >> you did already. you had your time. okay. >> thank you. >> mr. sanchez?

>> thank you, scott sanchez planning department. the case was reviewed in 2012. it was not issued until april 18th of this year. there was a block notations request submitted by the requesters and that was received by june 4. th. at the time we reviewed and approved this permit it was before the cbn was permitted. it requires no notification under the planning code. the jury's requester. when that i would turn it over to chief inspector. >> before you leave, mr. sanchez, the definition of a structural addition that triggers a planning code notification requirement, this does not conform to that in

your opinion? >> that's correct. the work that is being done under this permitted is what we would view and repair or maintenance does not expand the building envelope. most building expansion are triggers of use on notice of section 311. it was sent to the planning department because the building given it's age there was resource and exterior changes because of the changes to the bay side windows. >> mr. greko. >> good evening. anthony greko. this building was applied for and issued over the counter. the item to address, the section referred to under

section 106 a 3.2.3 is read with the language that defines substantial alteration as defined by the building official. in chapter two there was no specific definition of substantial alteration per say. so we use our interpretation under powers of section 104 which the building official has. however chapter 34 deals with existing buildings. chapter 34 deals with substantial alterations, structural additions and alteration and repairs and there are triggers for the implementation of seismic upgrades to buildings when those sections of the code are affected. in initial review of this permit we had zoning permit and based on the work to repair wall and basement, replace retaining wall and basementcious , it was not

identified as substantial replacement. there are triggers that there are two-thirds of the walls are floors in the being being altered. there are language that our civil engineers will use to evaluate the scope of the work. the scope of the work is what defines that substantial alteration. the dollar of the amount that was mentioned $250,000 there was no financial trigger that says a certain amount we need to have this notification. there is interpretation judgment exercised when the permit is reviewed and there would have been probing questions and the plan in review and found in compliance. in this case there's no change to the layout. no change to the use, no change to the occupancy and no change in the expansion in either direction. upon the

revision standpoint, since the department, since it had already been cleared. this is a revised permit and went through posting requirements in the lobby based on the engineer's review on the revised permit. the first permit was an over the counter permit. the subsequent permit was submitted wechlt had two different engineers look at the permits and they made their evaluations and provided the requirement and our staff made sure the lobby was posting and made the required permit. just a note for housekeeping, the date we look at this permit is applied for october 29th, and issued april 18, 2013. currently we have a policy now in dealing with permits that we are handling on our 5th floor on the counter on permitting we have a 90-day permit period.

that the permit is applied for you need to get that permit issued in a 90-day period. they are not going to get out there in an unlimited time. conditions change and we want to close those permits. fs applicant did not obtain all of those approvals they have to go back and get their approval. >> thank you. >> i have a couple of questions. so the health and safety work that is being performed that they received, does this building fall under the soft story retrofit? >> i believe it may based on the visual that i saw it probably would have enough units and wood frame and it appears to have a soft story. i can't tell you. it's on the list today. >> do you think the permit that they have obtained will satisfy the requirements for the soft story