not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish

to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has

reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call

item 7 abc and d. these will be heard together. item 7 a, b: 7aa 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. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb 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 7 abc and d. these will be heard together. item 7 a, b: 7aa 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. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb 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. sglsh 1234 item 7 c, d: 7cc 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. 7dd 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 tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and

the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over

turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest

injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say

that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that

an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it.

the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan and the missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of

compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument

that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to

planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land

entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the set backs and this type of thing. >> during the planning entitlement the housing accountability act was not brought up. >> no, this is the first time before this board. >> i have a related question. we heard at the last hearing that it was not feasible to conduct the small floors.

>> steve is prepared to answer those questions in detail. you would basically be making an sro and one of the objection is that the properties are too dense and too small. that's what they are saying the whole time. if the issue is to just make it harder to build and also make it in feasible from an economic point because we would have to go back and start over with the planning process, with the drafting and the design. i will have steve come up. >> mr. pacheco, is there closed captioning possible. >> wait a second. i don't

know if they are getting it on or not. steve, the architect for the project. i might want to limit my comments to two architectural issues and how they relate to this condition to limit their envelope and therefore reduce the size of the building. i'm not a lawyer but in my reading of all the briefs and the arguments brought forward, it's clear to me that there are very many unsettled issues a lot of them do relate to design. there is question of whether the height is a density control or not.

the planning code says there is a density control for height and the argument for reducing the control. the question of whether the retail and commercial space on the ground floor does make the building comply with the statute would have to be settled in the court's because the local jurisdiction has a different jurisdiction than the mixed use than the state. whether it complies to code prior to your condition or after is also open to debate. whether the project becomes unfeasible after this design of building by yanking the floor off is up to the permit holder to determine whether it's feasible or not. to determine the details i have drafted a possible scenario that in my mind i would not want to be the architect but

the building is very small unlivable and would yield over price unlivable units because the small units yield a higher square feet produce. it would be unlivable in my opinion. if the project didn't have a component it would be a different legal component to determine whether this applied or not. really i want to actually point out some building related and finding related visual the board did not see. this is a 7 story building on lexington on the historic district. it is a district of 2-3 buildings as the findings indicate also a building with corner

buildings specifically these two that are sometimes in this case they are very high 4 story buildings that is over 45 feet and a 5 story there. on hill street itself, the block that we are talking about. the image on the top is the 5 story plus height of the building on guerrero and down at the bottom is the non-conforming 2-3 story building that this project is closest too. lastly i just want to show in context because this was not even shown. the board did not even consider these kinds of things that the historic preservation heard at two hearings and the planning commission heard and unanimously supported, the project sits pretty much

right in at valencia street. it's extreme the condition to take off the top floor to help hill street. this is a view from hill street looking down. a very tree lined street. this is building rendered in context in two different modes. this is the last design. it sticks out over the trees like that and here is another version where it would diminish the top floor. there are many different options as to the measure of the top floor. >> i would like to go back to your statement that the pipe control's density. you and i both understand the eastern neighborhoods zoning quite

well. is it more accurate to say that the height controls maximum area. the density depends on the mix. >> why this question is not simple is that is true, but what is also true is that height is not the only density control. this building height, the two bedroom minimum requirement that 40 percent of the units have to have legal two bedrooms and the rear yard requirement. there is also an open space requirement. by reducing the top floor, for example, the units get squished down very small and then you lose, i would have to take more out to gain more open space, for example. so separate from the rear yard there is the limitation of providing usable open space per each auto. i had to do it in a design of this building

to reduce the building size to accommodate the open space requirement. >> understood. thank you. >> mr. sanchez? >> thank you, good evening and congratulations president lazarus and vice-president hurtado in your elevation of positions this evening. i look forward to working with you and definitely thank president hwang. this has been before the historic preservation commission and planning commission and board of supervisors and planning department has found the project to be code compliant as well as consistent with the general plan and the mission area plan. and with that i'm available to answer any questions. if you would like

to have further discussion about the density controls and i would agree with the architect that the variety of issues that affected in this case the height, the open space, exposure is another requirement, the rear yard, there is also a limitation on the ground floor uses in the valencia entity you can only have retail commercial on the ground floor facing valencia so you couldn't have retail uses on the planning code and that is resulting in the buildable envelope. >> perhaps something else. i have two questions for you: one is the -- in the housing accountability act it talks about neighborhood serving. how would you define that?

>> the permit noted and e-mailed me and i responded that the planning code does not contain an identical definition. we have legislators who crafted there through state law and i would interpret that term to include uses such as a restaurant and i think one of the appellants had noted that store and questioning whether or not we would include a store as a restaurant. it doesn't define stoefrment it would be clear to have clarity at the state level. my interpretation is that a restaurant could be included as a neighborhood serving. >> last question is has anybody brought up the housing act? >> to my recollection, no.

>> in 30 years? >> surprisingly yeah. the city attorneys office cannot recall those legal arguments being made. i know the department and the director had been briefed on the housing accountability act about 10 years ago. but this is not something that has come up. i don't know if it's because of a lot of the other project come before the conditional use operations for projects whereas this is something that does comply with the planning code. a lot of the larger projects are otherwise discretionary acts. >> i would like to ask you a question. one of the so-called conditions put on at the time the commission approved the project is no. 6, encourage refinement and building mass along hill street and

encouraged the sponsor to work with that and maintain the dwelling in the proposed project. would you care to elaborate on that. >> not in my favorite condition. mr. tieg expressed to you at a previous hearing. certainly as we have a hearing here or at the planning commission, it's always best for staff to have explicit direction wherever possible about the goal of the board or commission and what they would like to see happen. i think what we have taken from their action here is that there could be further modifications, probably maybe to exterior materials, some slight set backs but of primary concern it was number of dwelling units be retained and not reduce. so i in

everyone's retro expect it's not the best condition but we worked with it as best we could. >> do you know how we might meet this vague condition? >> certainly it would be up to this board to consider those as part of this process as well. to make changes if the top story were retained to have additional set backs at the rear of the building. that is definitely an option and one i would assume would not depending on how much would need to be cut back would not result in the reduction of dwelling units. it has been noted under the planning code if you have more than 5 dwelling units you need to provide a mix of dwelling units. in this case they saw the to provide two bedrooms

and they are providing more two bedrooms than are required under the code so they could reduce the size of some of the units on the top floor and still be code compliant with terms of unit mix. it's dependent on how much of a setback would be proposed. >> thank you. mr. duffy, anything? the matter is submitted. >> public comment? can i see a show of hands of people that would like to speak on this item. if you can lineup on the far wall. if you haven't filled out a speaker card, that would help us in the preparation of minutes. the president lazarus you

indicated the number of minutes you would like? two 2 minutes and the basis for that is the size of the crowd and what is before the board this evening? >> yes. >> okay. you have 2 minutes. >> i'm cho a. i'm a neighbor. i want to let you know that there are a lot of us who live in the valencia corridor who really do feel like projects like this are necessary. i absolutely love the marsh. i think they are a great institution and they serve the area so well and that's why you have so many people here from the marsh. i feel the developer has done a really great job of lifting up to help with the sound issue. the part where the developer hasn't -- the part that concern me greatly is the

affordable housing question here. we could not afford to lose more housing in san francisco and it's still very hard to build housing that i really and treat you all to look very carefully to look at any decision that causes us to lose an entire floor. the street is full. i live right besides many buildings that are taller than what is being proposed very close to that development. i do not think it changes the liberty hill. in fact making the city more livable is a way to protect what the city already has rather than make the city less livable. i urge you to please continue this billion as it's designed at the height it's designed with the affordable housing it contains. thank you for your time.