regards to commissioner fungs question the information provided by the project sponsor and last week clarified some of the points that were raised by the appellant in the rehearing request in terms of the grades shows the project. it's more information than what is on the approved plans and we would request that this be added as an addendum to the information. we reviewed all the materials and it is code compliant. i'm available for any questions that the board may have. >> i have a quick question. can you address the appellants argument regarding the height? >> yes. we did review the material and reviewing the submittal for mar, the building permit application banged in november and december we did request additional information from the sponsor and they were

able to demonstrate from surveys that this would in fact be less than 3 feet in height above the existing grade. with all that information i think it's properly shown in the permit holder from last week that given the lateral slope of the lot, what they have essentially get a clear story for the offices to be within 3 feet. >> is that an average of what we are talking about because of the slope in >> they are correcting it along the slope and it's going to be no more than 3 feet above the average. >> this you for clarifying that. >> my same question on that dimension. what does it show the elevation for the edge of the roof. you have the site permit? >> yes i do. so on the site permit on the section on the

site plan they called out the new planned roof elevation 4461 and including the landscaping. that's shown also on the second level floor plan. that's the top of the vege taetd roof landscaping would be exempt under the code as well. we wouldn't count that towards 3 feet. and on the section to the top of retaining wall 44511. the delta there is the landscaping. >> now, it was somehow given

today for this hearing has a different number. >> the top of roofing 445 and that is, so the question is the discrepancy between 4454 the material submitted last week and the 44511 on the section from the site plan? >> yeah. because they have indicated that the grade at the mid-point of the lot is at 4424. >> i think maybe the architect may want to address the correct location. >> you indicated the site permit had this -- elevation.

>> i think again that the permit architect should address this question and the discrepancy on the plans. >> thank you. >> would you like to have the architect come back to the microphone? >> yes. i will raise the same question. >> that number is i assume to the facia, there is a number holding up the landscaping. that is no longer there. all i can say is the top of the structure has indicated in our brief will be code compliant, the top of the roof structure will be no greater than 3 feet as measured above the average grade. that's what our addendum

is clarifying. >> so you dropped it 7 inches? >> no. that landscaping assembly we have to address. we have to change. what we are talking about the top of the roof structure now. >> well then you have me confused because your dimensions point to the same thing on both drawings. >> i'm just going off the revised section drawing that we've given you that's measuring the top of the concrete structure of the roof. that piece was just a trim piece on the edge of the built up -- landscape roof on top of the concrete structure. >> okay. so your original

drawing showed it to the top of the fasha and now to the top of the roof? >> yes. that's correct. >> okay. thank you. mr. duffy, anything? no. is there any additional public comment? seeing none, public comment is closed. commissioners, the rehearing request is submitted. >> any comments, commissioners? >> i almost thought it was, i'm still not 100 percent sure because it's a little bit slight of hand changing the dimensions by saying you are changing the detail. >> i see no reason. i think that the point that santos, the

engineer that the permit holder had the ability to do a pop out without a side yard setback. this is definitely less intrusive than what they could have gotten over the counter. so i don't see a reason i think that we should uphold the permit and deny the appeal. >> i think there was not sufficient new evidence to do a rehearing. we've already heard these arguments. for that reason i would move to deny the rehearing request. >> okay. mr. pacheco if you can call the roll please. >> on that motion from the president to deny this rehearing request, commissioner fung, aye, commissioner

hurtado, aye, lazarus, aye, honda, aye. the vote is 5-0. this hearing request is denied and the order shall be released. >> before i call the next item, i'm going to ask the people standing to take a seat. we have to keep that area clear because of fire codes. you cannot stand on that doorway. we'll hear next items 5abcd. item 5a, 5b, 5c, 5d: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. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 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". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 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. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. regular meeting, board of appeals, january 15, 2014 - page 3 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". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentativesf 512341234 two of the appeals filed by the marsh all against the planning department of approval. four are dealing with the property at 1050 valencia street and two on july 13, 2013, a trust to do a demolition to demolish one restaurant with square feet of ground floor area. two are protesting the issuance on july 17, 2013, to emma trust to e erect a building with 3,000 square feet of ground floor area. these matters are on for further consideration today and adoption of tentative findings and conditions. we'll start with the marsh who have 3 minutes to address the board. >> madam clerk, before we start, i have a question as to commissioners. i think i want confirmation. this is not brought in the context of a rehearing request because we have not adopted the findings. once those would be found and whatever we found is finalized, at that point the clock runs for a rehearing request. >> that's right. no final decision is made by the board

and then when that is done a rehearing begins. >> so we are hearing input on the findings? >> the board rules allows the parties on the potential findings that have been repaired. >> thank you for the clarification. >> yes, it has been calendared for further consideration as well as the consideration for the findings. the matters are still freshly before the board. >> understood. thank you. >> commissioners good evening, for the record, gallagher for the marsh. before i address the findings and conditions i want to address the point mr. williams stated at the last hearing. he was required, notten encouraged, required to appoint in writing a community liaison office prior to issuance of the permit before

the issuance of the permit. so before. appointing himself after permit issuance is insufficient for the developer to remedy this violation. the whole point on that condition to encourage neighbors within the mark which he also didn't do was to begin before permit issuance. no one contradicted mr. williams testimony. no one. the violation of this condition is sufficient grounds for you to deny the project in its entirety. if we think it's okay to give a wink and a nod developers who ignore planning commission requirements especially ones who speak to neighborhood concerns, then efr developer is going to ignore these requirements. having said this, the -- marsh nonetheless

-- condition k requires to stop construction at 4:00 p.m. monday through friday. mr. rut acres stated to miss brian that he believes the marsh is not active. this is probably why he addressed the merchants association over the holidays and asked them to write a letter in support of the 6:00 p.m. stop of the construction work. by e-mail of january 1st, wrote to miss wise man and said we have written the developer and let him know that we could not support his request. even the exterior hours. that's a 50-hour workweek. university employees are going to be working longer than that. i forgot, the developer hasn't made a former commitment to

hire union labor. in any case he's entitle to a 9-hour workday and 50-hour workweek. there is heavy bike traffic on valencia street. it requires buyers and renters to sign an affidavit and made aware of a theatre next door. we believe we have addressed the validity of this condition in our three page brief. we ask for the phrase to be inserted in the phrase. thank you very much for your time. >> can you repeat that last suggested modification? >> yes. quote, prior to the purchase -- >> what letter? >> condition h. >> okay. >> ", prior to purchase or lease" inserted after the phrase "to sign an affidavit.

>> my eyes aren't finding. >> it's in the boards draft conditions of findings. first sentence. >> read the sentence in insert. >> prior to purchase or lease." where is that? >> to be inserted after the phrase, "to sign an affidavit". >> okay. prior to purchase or lease. okay. thank you.

>> good evening, steve williams. i'm confused about the scope of the hearing. to my understanding is the hearing is to comments on the findings. i submitted those on my letter. there is no hearing on the merits of the case. there is none of that is to occur at this hearing is my understanding. if there is a different reading of the rules, then i think i need to know that before i get started. the board voted and then closed that hearing, said no more briefing, no more exhibits. now i'm confused when the city attorney commented that it was on for another hearing. so.

>> it's not another hearing. it's the same hearing. >> if it's different, i need to know under what rule is that occurring. >> we did come to a vote and voted for the conditions setforth in the draft. we asked for a briefing and an opportunity for each side each appellant and the permit holder to address any issues that they felt were raised boo i the findings and issues were raised. we are here to consider them and listen to what is presented to us today. and we'll take those under consideration on the adoptive findings. >> okay. when i look at the rule under article 5 section 8.

it speaks only of the findings and every sentence with that rule begins with the findings and now that some how to hearing is reopened and voted. anyway, steve williams representing appellant alicia gamez. the procedures are clear, the findings should be inaccurate. detailed reflection of the discussions and deliberations have by the board at the last time and the findings in this case should reflect the unanimous vote and discussions had by the board. the appellants want to thank director goldstein, she followed the rules. she gave everybody a fair chance to comment on the findings. we think that what she produced is accurate. she rejected a very detailed attempt by the project sponsor to argue the merits and sort of rewrite history with

new findings that had absolutely nothing do with the deliberations and statements from the board. so what's before you we believe does reflect the findings made by the board. the find gsz have provision from the general plan, statements from the priority policies, the housing elements, the urban design element and these provisions mostly cited by appellants in their breefgsz -- breefgsz briefings to the board and reflect the policies of the existing neighborhoods and characters of the existing neighborhoods and including meeting the heights of the existing neighborhoods and and we cited to those and we are

pleased the board agreed with us on those findings. i did want to comment on the second letter submitted by the project sponsor's council on the housing accountability avenlth -- act. you would think from the letter that the state law had removed all discretion from local bodies to design and comment on housing in their localities. it's simply not true. unfortunately mr. -- did not fully quote the law. i have brought a copy of it. he stops his quote in mid-sentence. he left out the references tools to manage -- that the criteria can be -- reviewed. they comply with the plans and the mission area plans and those policies are spelled out in black and

white. we urge the board to adopt the findings as is and we believe they are in inaccurate representation. >> i would like a copy of the full text for everybody else. >> compare that to the second page of the letter he stopped his quote in mid-sentence and left out that the board certainly has the power and duty to decide housing issues on design criteria as well. >> can you give me the actual code citation? >> 65589.5 j >> okay. commissioners you all have a copy of this piece of legislation. >> in that code section was

aimed at specific cases that occurred in southern california for some housing was blocked in an arbitrary manner without findings and that is not case here where the board has made detailed findings which -- echo. >> is your time up? >> yes, it is. >> okay. thank you. >> are you ready to hear from the project sponsor now? >> yes. okay. you have 6 minutes. >> commissioners andrew genius. i'm really happy to be here and appreciate the time that you

are an allowing us to meet here and find the time. i very much appreciate the 6 minutes. we are going to split our time. i'm going to take the first few minutes to discuss the government code section and then i will turn it to my client to speak for a few minutes about the construction issue that also you are making findings on today. let's start with the government code. 65589.5j for standards for findings based on one of the actions based on the removal of the floor. specifically if a local density wants to remove housing project must make a findings that it's necessary to protect from a quote specific adverse impact on public health and safety. i have a provisions of the code here. it will be

exactly what mr. williams handed forward. there is no differentiation between what he has provided you and what we have provided you. what he cited in the reference has nothing to do based on public health and safety. >> why did you leave it out? >> i was limited to 3 pages, double space. >> you could have left dots there. >> my apologies. i hope you will take a closer look at it. >> i will take that. thanks. >> thank you very much. >> so at the december 11th hearing, one of the actions was to remove to begin the process to remove to top floor of the project. unfortunately the findings before you today and the issue i'm interested in today is that those findings are unacceptable and do not satisfy this code section. it

deals with code and safety and different from planning code issues. what exactly did the public health and safety have to do with land use policies and land use issues? let's start with the public safety aspect. we have a building code. the building code is an extremely important part of san francisco. we want buildings to be safe. we don't want this em to fall down in earthquakes. there is a requirement for life safety and when there is a fire, there is no risk of life. those are important for the building code. there was nothing raised at the last hearing in december that would say otherwise. where is the evidence in the record that says that a 5 story building would be any less safe than a 4 story building. that's the findings you are supposed to make under this code section.

public health, we have a health code. you have a huge range from general to restaurant regulation. there is some overlap, there is some department of public health issues, storage tanks. you will find nothing in the city's health code or any other code that speaks to the issue of whether a larger building or smaller building has any specific effect on the public's health. any significant impact adverse to the public's health. where is the specific adverse impact on public health and safety that would be caused by a health code. i couldn't get the entire section into my letter. i thank you, i'm available for questions. i would like to turn it over for the remainder of my time.

thanks. >> good evening, madam president. mark, permit holder. we respectfully request that the board allows us to retain a work permit. that is 7-6:00 p.m.. we heard testimonies how the marsh has changed people's lives and how new housing was going to run out the neighborhood. we did not hear with any evidence or facts to support the findings. 1 person testified they have been interrupted during the performance and they heard noise next door. the 7-4:00 p.m. restrictions places a burden on us and inconvenience. it makes this project unfeasible for safety and financial standpoint. dragging this job out pro longs all the

congestion and the community disruption that comes with it. the original 7-6:00 p.m. time restrictions were arrived at after the appellant and commission and permit holder. and they are arbitrarily imposed. these new stop work time seems more like a sentence, more like a punishment than anything practical. please remember that despite all the demonization that we have heard here, creating jobs and tax base is still a desirable activity. we want to get this project done quickly. i just have to address the thing with mary gallagher here. we had nine meetings with the pell avenlt three of those meetings were with myself were specifically to address problems with their building

that we were offering to do pro bono work, consulting to take care of whatever their problems. nine meetings. to say we never met at the last meeting is false testimony. thank you. >> thank you. >> i have a question for the project sponsor's attorney, please. >> thank you, commissioner. >> it's not clear to me that the housing accountability act applies to this project. can you explain how this project fits the definition or what is the definition of housing development project? >> it is defined in the act itself. so what i have provided you the act is 10 pages long. the provision that is relevant here is in subsection j. that is held in court back in 2011. >> but she wants to know how and whether the project itself is subject to that act?

>> subsection j says when a proposed housing development project. so that must be defined somewhere in the government code. that's why what i need to know what was the definition and how do you think this project fits that definition otherwise it's not clear to me this code applies to this project. >> certainly. i can answer that. under subsection h 12 says "housing development project means the use of any of the consisting following. residence only, limited to commercial uses and first floor that are two or more stories as used in this paragraph, neighborhood commercials, subsection c traditionally house or supportive housing. it can be any of those three things. it clearly we are under

h 2a or b. this actually does have some ground floor retail. it's a housing project under the definition and you go j, subject in j applies. >> i was trying to find that language we do have. can you explain why how you this i this project fits that definition? what part of the definition? >> under h 2a and b it's a housing project. it has residential units in it. that's what housing project is. >> it says residential units only. >> the rest says mixed use. >> there is more to that actually. >> it's neighborhood commercial uses at the first floor buildings are two or more stories for this project, that's the neighborhood commercial use permitted at the ground floor of this property. >> hold on. i'm going to show you this