>> all in favor, say i. we're adjourned. good evening and welcome to the board of appeals meeting for december 11, 2013 ,

if there are seats here, this is an overflow room, room 421. if you are not able to find a seat, we would ask that you please go to room 421 and we'll make sure you will have an opportunity to speak for whatever item you are interested in. we'll keep that area open. the presiding officer is chris fung, and we have commissioner honda and hurtado. at the controls is the board's legal assistant victor pacheco. i'm cynthia goldstein,

the director. corey tooeg is here the acting and zone k administrator and representing the planning department and planning commission commission and joseph duffy representing the department. the clerk: the board request that you turn off all cell phones and pagers. the department representative an 7 minutes for each case. people affiliated with their party must conclude their comments in the 7-minute period. those not affiliated with the parties have up to 3 minutes. members of the public who wish to speak

on an item are asked, but not required to submit a speaker card when you come up to the podium. speaker cards are on the left side of the podium. there is customer satisfaction forms on the left side of the podium. if you have a question about the rehearing, please speak to board staff after the break or after the meeting. the board office is located at 1650 mission street. this meeting is broadcast live on sfgtv cable channel 78 and dvd's of this meeting are available for purchase directly from sfgtv. thank you for your attention. at this time we'll conduct our

swearing in, if you intend to testify, please stand and raise your right hand side and say i do. please note any member of the public may speak without taking this oath relative to the sunshine ordinance in the administrative code. thank you. >> do you solemnly swear or affirm the testimony you are about to give to be the truth the whole truth and nothing but the truth. >> we are making this time available for any public comment for anyone who would like to speak under general public comment? seeing none we'll move to item no. 2 which is commissioners, comments and questions. commissioners? item no. 3 is the consideration

commissioners of the meeting minutes for november 20, 2013. any changes? i'm going to move to adopt the minutes. >> okay. any public comment on the minutes? seeing none, mr. pacheco if you can call the roll, please. >> the clerk: we have a motion from the president to adopt the november 20th, 2013, minutes on that motion, commissioner fung? >> aye. >> commissioner hurtado? aye. lazarus aye. >> we are going to call no. 7 out of order. item 7: 77

appeal no. 13-135 michael shaffer & richard tsai, appellanttss vs. dept. of building inspection, respondent planning dept. approval 801 & 803 kansas street. protesting the issuance on october 09, 2013, to chris cobb, alteration permit repair/replace existing stairway and porch at rear of building; new decking for required means of egress; add firewall; provide new support footings to porch and stairway; comply with nov no. 200996781 and 2007909733. application no. 2012/10/30/3118. for hearing today.>> we are going to call no. 7 out of order. sf 71234 commissioners, i understand the parties have reached an agreement and i would ask that they come up to speak. if someone is here on behalf of the appellant, they should come forward as well. >> we have reached an agreement on a new plan and the plan is consistent with the plan we submitted as an exhibit to our papers. we've been informed that the drawings we have there are not sufficient for you to necessarily approve the alternative. so we would like tools to manage tools -- to ask for an agreement based on

the agreed. >> are you mr. schaffer? mr. cobb? so the parties are requesting more time to prepare the documents. >> is 1 week sufficient? our next meeting is the 18th of december. that's 1 week from today. >> i think 1 week is good. >> could we have more time in just in case to the first meeting in january? >> if that's acceptable to both parties. >> absolutely. okay. >> all right. >> i'm going to move to continue to january 8th, based on the parties presentation. >> that's a very loaded

calendar. >> it is a loaded calendar. there are 12 of those 17 items on your list are for one property. it's a little less daunting than it looks. >> all right. we are hoping that you will come with the same conceptual agreement. >> thanks very much. >> hold on one second. is there any comment from the department? is there any public comment? okay. victor, if you can please call the roll. >> we have a motion from the president to reschedule items 7. to january 8, 2014. on that motion, commissioner fung, aye, commissioner hurtado, aye, vice-president lazarus? aye, commissioner honda, aye. >> thank you. this vote is 5-0.

the matter is moved to january 8th. >> we move to item 4. item 4: 44 rehearing request: subject property at 350 mission street. letter from sue hestor, appellant, requesting rehearing of appeal nos. 13-114, hestor vs. planning commission, decided nov. 13, 2013. at that time, the board voted 4-0-1 commissioner fung absentt to uphold the planning commission motion and office allocation with findings as read into the record. project: grant an additional allocation of 80,000sf of office uses related to construction of up to 6 additional stories atop a previously approved, 24-story tower, resulting in a new building of up to 30 stories with a roof height of up to approx. 424 feet; motion no. 18956. motion holder: kr >> we move to item 4. sf 41234 >> commissioner fung? >> yes, i have reviewed the

tape. >> people standing on that aisle, you need to clear that aisle. we could not keep that blocked. there is an overflow in room 421. i would ask that you find a seat or make your way to room 421. >> after the public testimony was closed at the last meeting, there was commission discussion about the nature of the appeal and permits. i want to make excruciatingly clear that no one, least of me has the right to build under the old permit. the timeline for that appeal permit lapse. this appeal is about the second titlement. the additional 8 stories. at 350

mission, it is the headquarters, proposed headquarters of sales force. you have the same right under the charter and the planning code and the rules of this board to say aye or nay to this office allocation. office allocation has been designed to be something that is not automatic. and what i have off the offered and testimony about who is a good showing for the city. that either sales force is already a beneficiary of says that they are not paying in a timely manner the transit fees and the office

allocation fees and the fees for the city. one of the things that i think people should weigh is if someone is asking for more, more, additional square footage. it's appropriate to look at what they have done presently and what they have done up until now, these beneficiaries are cheating, those are my words, cheating affordable housing and transit plans to the city. the whole fee structure which i agree is suspended boo i the board of supervisors but was taken advantage by big developers is to, it has in place housing for the work force. transit for the work force, child care for the work

force. and the big developers that said, oh yes, we will just bend the rules for ourselves. this is the first one that is coming back for more. more is not appropriate when people are not good citizens and being a bit of hypocritical about it as well. thank you. >> miss hesser do you have any new information? >> my new information was i listened to your testimony. i listened to your deliberation. your deliberations were all over the place about whether it was 6 stories or 8 stories. >> we need to hear from the permit holders representative. >> good evening commissioners, dan frat on, this is the second

time i'm here in a month on behalf of my client. at the last hearing you unanimously rejected miss hesser's appeal and upheld a unanimous vote by the planning commission creating an addition to the building. i think it was exceedingly clear to you at that time that the matter was a 6 story addition and not a 24 story project. as you are well aware there is a fairly narrow standard for granting a rehearing request. by her own admission at the podium, miss hesser acknowledged there is no new information. she was just simply pointing to the discussion that you had at the last hearing discussion that she did not agree with as the reason to bring a new hearing. i don't think that holds any water under the applicable legal standard. i will say that, if we were in court, and

miss hesser was to bring an appeal to without botherer to bring an address to what was delaying us taking up your time to be sanctioned because this was the board of appeals, we have no recourse, we have to accept delay after delay. i think it really undermines the integrity of the public process that complaints like this come before you and there is nothing that can be done to throw them out. it's not the way things should work. i hope you will vote to deny this request. thank you very much. >> thank you. i'm sorry, the people on that side of the room you cannot stand there. i just

want to set the decorum for the tone of the room. i do not want to hear any hissing in the room. there will be an opportunity for public comment. >> good evening. corey tieg. i'm here to discuss what miss hestor is complaining about. the original appeal was the original office allocation associated building permit did apply for and was submitted into the fee deferral program that allowed them to make a

impact fees. the additional 6 stories of office space also could have gone within that fee deferral program but the developer did choose to voluntarily go ahead and pay the impact fees at the issuance of the first construction document for the 6 stories but did not choose to take the fees from the original office allocation and pull them out of the fee deferral program and paid them in full. i just wanted to make sure that was clear and i'm available for any other questions you may have. >> is there any public comment on this item? seeing none, commissioners, the matter is submitted. >> a couple of comments. commissioners, during the appeal hearing on the original

24 story building, i made comments that related to the fact that the exceptions that were granted allowed them to continue with a fairly bulky building that's reflective of many of the bulky buildings we have. i did not at that time agree that the exceptions were appropriate and the floor plates and the size was justified and on a personal note, i would agree with miss hesser that they should have paid all these fees upfront. however the question is whether the rehearing request has justification based upon our procedures of rules and at this point i do not see justification for it.

>> i would move the deny the rehearing based on no justification. >> please call the roll. >> we have a motion to deny the rehearing request. commissioner fung, hurtado, -- [roll call vote taken] the vote is 5-0. >> now we'll call 5 abcd. item

5a: 5aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. >> now we'll call 5 abcd. item 5a: 5aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. for hearing today. 12341234 snul5bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaafor hearing today. 12341234 snul 5bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". # 12341234 sf item 5c & d: 5cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. for hearing today. 5dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection,

respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s".item 5c & d: 5cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. for hearing today. 5dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/1234bythe marsh you have 1 minutes. >> i'm an acquaintance and i don't think that will impact my vote here tonight. >> good evening. i'm located right next to the proposed development. i would like everyone here supporting the marsh to please stand. thank you so much. in 1989, i found td marsh, a non-profit theatre to develop new performance by giving artist a venue and tool to develop their voice. during the past almost 25 years we've grown to present over 700 shows, 400 in our mission theatres. we provide 55 classes to be adults and youth and many others. are critically

acclaimed to show produced around the world. chosen by the u.s. state department to highlight oil politics and corruption in that nation. we have received the prestigious award three times for the local and national awards. fluke at the pink pages we generally have 2-3 critically acclaimed performances going every week. we have a year round after school and summer youth program where no child is ever turned away because of financial resources. in this time of displacement of artist and mission culture, please think of the marsh as a safe house for artist to develop the work, for children to take up affordable classes and for children to attend our affordable and critically acclaimed show. we are not indestructible, however if protective conditions are not

written in the permit, we will not survive artistically or financially. as a non-profit theatre that serves not only the mission but the city and visitors around the world, the marsh is a sensitive sound receptor. we are very concerned about sound. the sounds like noise coming from the construction will impact our after school and summer youth program. that residents will throw parties in the open patio deck and drown out our performances and will decide living next toe tools to -- to a live theatre is not what they want. that their sound will bleed into our theatre and disrupt performances. although we have more concerns about the project which you will hear more about in detail, we are

most concerned about the issues concerning sound. the marsh cannot survive an 18-month construction period that permits without significant conditions noise in the order of magnitude of jack hammers and large trucks outside our doors and could not muster the resources to offend off nuisance claims however frivolous they might be by owners of the proposed million dollar condominium units who do not understand what it's like to live next to a performance house and will cause problems from the moment the project is occupied. i want to make clear for the record that the mark does not oppose development generally. we have attempted to

collaborate with the developer and with our residents and the larger mission hill community which the development can blend month a rich and diverse fabric and to our mark and long existing neighbors have created along the street. collaboration is the way we know how to work and we need to know it will mesh in the entitlement process. we want it to fit into this context, 2, allow the mark to survive and flourish and support the city's transit first policy and four, promote home opportunities for mission residents. i have asked mary gallagher and former assistant director of san francisco to complete our presentation. thank you and happy holidays.

>> commissioners, good evening. for the record mary gallagher, for the speakers, i'm not being paid to be here. like them i'm compelled to be here. i believe the marsh is an incredible venue. i want to give a hand to commissioner wiener and supervisor wiener who took steps to help resolve the differences between parties. i would like to walk you through where i think we are in conditions. i have some copies for you should you decide to accept them for the record and in any case i will display them for the overhead. >> i would like to have a copy. it looks like small print. miss

gallagher do you have copies? >> on the left hand side are conditions we have agreed to. and the right conditions we have not agreed to. conditional no. 1 and condition no. 2, depending on the hours imposed the noise generation and daytime performances not to exceed 20 a year. 3 trucks can't sit idling for more than 5 minutes. again, i think we have agreed. four, this is in notice to alert owners and tenants of the existence before they think about buying or

renting a unit here to help avoid this problem of people occupying units without understanding the ramifications of moving in next door to a live performance venue. this is a problem that plagued uses adjacent to live work through the south of market through 90s. i believe we are in agreement worded on the left but not on the language worded on the right. i brought with me a sample affidavit. this came off the live work project. commissioner fung probably remembers this type of thing. it was present in hearing after hearing and our line directly reflects this notice prior to sale and it requires that the buyer state in the affidavit i

have observed the adjacent and we have no right to object to the lawful operation of the adjacent use. 5, the completed project won't result in sound. this is agreed upon. condition six and seven are a little different than the norm. they both require trailing legislation. but they both speak to the item. neither condition would take place unless trailing legislation is adopted before the permit of occupancy is granted for this project. condition 6 is preference to buy the affordable units to residented that have been displaced. condition 7 would not allow resident to obtain parking. citizens around the country are

opposing this condition. it would help ensure that people granted bonuses to proximity transit are taking transit. there is also the issue of scale and design of the building. we defer 2 and support the liberty hill neighbors and you will hear more about that from steve williams. what we have agreed to: construction hours. halt time for workup until point that work goes indoors because of our after school classes which frequently include performances. the developer would like 6 throughout the construction period. we agree that quiet construction but nothing agreed to. my understanding that it can result in ns