>> good evening, welcome to the june 25th, 2014 meeting of the san francisco board of appeals. the presiding officer this evening is the board's president, ann lazarus, and she is joined tonight by commissioner frank fung, commissioner darrell honda and commissioner chris wong. the vice president, arcelia hurtado will be absent this evening. to my left is deputy city attorney robert brian. he will provide the board with any legal advice tonight and at the controls is the board's legal assistant victor pacheco. i'm cynthia goldstein, the board's executive director. i am joined tonight as well by represents of the department that have cases before the board. in the front row is corey teague, existing zoning administrator also representing the planning department and planning commission. jeff was here a moment ago i'm

sure he'll be returning. he is the building inspector representing the building inspection. also joined by [speaker not understood] bureau of street use and mapping. mr. pacheco, at this time if you would go over the board's meeting guidelines ask then conduct the swearing in process. >> board requests that you turnoff all phones and pagers so they will not disturb the proceedings. please carry on conversations in the hallway. the board's rusev of presentation are as follows. appellants, permit holders and department representatives each have 7 minutes to present their cases and three minutes for rebuttals. people affiliated with these parties must include their comments within the 7 or 3-minute periods. members of the public who are not affiliated with the parties have up to three minutes each to address the board, but no rebuttals. to assist the board in the accurate preparation of minutes, members of the public who wish to speak on an item are asked, but not required, to submit a speaker card or business card to staff when you come up to the podium.

speaker cards and pens are available on the left side of the podium. the board also welcomeses your comments and suggestions. there are customer satisfaction survey forms on the left side of the podium. if you have questions about requesting a rehearing, board rules or hearing schedules, please speak to board staff during the break or after the meeting or call the board office tomorrow morning. the board office is located at 1650 mission street, room 304, between duboce and van ness avenues. this meeting is brought cast live on san francisco government television, sfgov-tv, cable channel 78, and dvds of this meeting are available for purchase directly from sfgov-tv. 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 hearings and wish to have the board give your testimony evidentiary weight, please stand, raise your right hand, and say "i do" after you have been sworn in or affirmed. please note that any member of

the public may speak without taking this oath pursuant to their rights upped the sunshine ordinance. thank you. ~ under the sunshine ordinance. thank you. >> please stand. do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? [inaudible] >> thank you, mr. pacheco. president lazarus, commissioners, we have two housekeeping items this evening. the first has to do with item number 4 which is a jurisdiction request at 1442 to 1448 cabrillo street. that has been withdrawn and will not be heard. also item number 11 has been withdrawn. that is an appeal of an excavation permit issued to at&t located at 982 rhode island street. so, that matter also will not be heard. moving to item number 1, which is general public comment, is there anyone here who would like to speak on an item that is not on tonight's agenda?

seeing no general public comment, item number 2 is commissioner comments and questions. commissioners? >> like to congratulate tim and the giants on his shut out and 4-0 victory over the padres. >> okay. is there any public comment on the commissioners comments? seeing none, then the next item is the adoption of minutes. commissioners, for your consideration is -- are the minutes of the board's meeting of 2014. >> changes, additions or deletions to the minutes? >> no. >> if not, is there a motion to approve? >> so moved. >> is there any public comment on the minutes? okay, seeing none, mr. pacheco, if you could call the roll, please? >> on that motion from commissioner honda to adopt the june 11, 2014 minutes, commissioner fung? >> aye. >> commissioner wong? >> aye. the vice president is absent. president lazarus?

>> aye. >> thank you. the vote is 4 to 0. those minutes are adopted. >> okay, thank you. so, i'm going to call item number 5 next since item 4 has been withdrawn. mr. yea, this is the item for translation, okay. so, this is appeal number 14-0 80, marie morales versus the department of building inspection with planning department approval. the property is at 2386 30th avenue. protesting the issuance on may 1st, 2014 to [speaker not understood] of an alteration permit to remove an unpermitted kitchen styled by previous owner on the legal habitable ground floor per plans and disconnect utilities, touch-up paint and finish, revert this area back to last legal use. so, we will start with the appellant. you have 7 minutes to present your case.

good afternoon. good afternoon, board. my name is marie morales and i'm the appellant in question. i'm a tenant at 2386 30th avenue. i'm here to contest the permit in question, number 201 4 042 04 598 on the basis of -- >> would you mind speaking into the mic? i'm sorry. >> thank you. on the basis that it is listed as a single-family dwelling and there are indeed two separate and distinct units and tenants. number two, the respond end did not complete box number 24 on the permit application indicating whether the proposed changes would result in a change of occupancy, which it would. it would result in our eviction. and most importantly, neuberger berman three, no notice of violation has yet been issued by the department of building inspection instructing the respondent to perform the requested changes on this permit. 2386th 30th avenue since 2003 of july 15. the first department i ever

had, i've been there since high school. my present roommate [speaker not understood] has lived with me since june of 2011 in the upstairs tennessee ant who is also present has lived at 2386 30th avenue for more than 14 years with her daughter a lebanontion i can't and mom. when i first moved to this apartment [speaker not understood], it was explained to me by the previous [speaker not understood] that my utilities were included in my rent. this is one of the issues brought up by the respondent. ~ at no point in time until the house went up for sale last year was i ever approached for utilities by either the landlord or the upstairs tenant maria cruz. had i been approached i would be happy to contribute. he would like to use this as a question of my character. [speaker not understood]. my family has lived in the sunset since the 1 40s and every one of my family's homes had a proverbial inlaw unit which to my understanding was a room with a bathroom inside of the garage.

however, our apartment is not [speaker not understood]. we have a full entire floor, separate entry, separate bathroom, separate kitchen, separate comcast. i was unaware it was listed as a single-family home until it went up for sale ladthv year. none of this was pertinent at hand. we're here to protest the permit. [speaker not understood] without me hokev ~ hwang, it was our intention to stay which is our right as tenants. [speaker not understood] i am falsely accused of harassment with outside meetings after we repeatedly told them after two months of weekly meetings at 9 o'clock at night and weekend we would have no more meetings. however i have at least 8 to 10e mails and texts that prove otherwise. in addition the defendant has shown up unannounced to maria

cruz's place of work on more than one a occasion about which she can corroborate, but none of these matters are of consequence to what we're disputing. i'm refuting key points of the evidence. they claim i am a well paid physical therapist and have the means to go elsewhere which i find comical which they presume what my finances are. i do not live alone and my roommate's finances are not he can live elsewhere. they say i'm living here basically camping out rent free is the term they use. [speaker not understood] requesting we no longer pay rent from now until we leave. and i have with me in my bag the march rent check that they sent back to me restating that they did not want me to pay rent from now until i leave. and in addition to that i have set up a bank account for rent and payments ever since then so i have all of the rent set aside. it's just the respondent did not want to accept it.

again, none of these have any pertinence to the issue at hand. we're talking about a permit. i'm just trying to defend my case, so to speak. it was also noted in the happened out of the respond sept that i had put the notice on the door when an inspector was intending to come stating to do so would be a violation of civil code 1954. difficult so upon a conversation with my attorney advising me to do so. and per my discussion with inspector did you every on the phone, he had indicated that if we are not allowed entry into the premises, they would have to speak with the city attorney about getting a warrant to obtain entry into the premises. i said that would be fine. we would abide by any warrant that would be given. duffy ~ if it is obtained we will abide. the main point i need to drive home is again no notice of violation has yet to be issued commanding that these changes be made. when and if that occurs, we will of course abide by the law, but this has not occurred. and this is why i'm asking that

you deny this permit. >> i have a question. how long ago was the transaction for the sale of the property? 11-5 of 2013. >> was a real estate handling it -- a real estate firm, [speaker not understood]. >> at that time did you complete tenant i stop he will? no, i included a statement in the evident but i did not fill out an estoppel agreement. >> where is that in your evidence statement? you guys have copies of everything in froth of you? my table of contents. my tenant statement is 5 02 dated 5-13. following the copy of the original lease. >> okay, thank you. >> thank you. okay.

>> i just wanted to add one thing. i think you wrote our home and our building, but you're not a property owner. new york city that's correct. [multiple voices] [multiple voices] the home in which we reside is better terminology. >> thank you. >> we can hear from the permit holder now. hi, good evening, ladies and gentlemen. i'm attorney jesse ralph on behalf of respondent nhi hoang. the appellant recites as reasons for contest of

respondent's permit, one, harassment, two, illegal eviction notices, three, fraudulent contract, four, lack of notice of violation and five, inconsistency with an executive directive. in fact, even if one harassment to a legal eviction notices and/or three, a fraudulent contract have occurred, all of which respondent denies. those reasons are irrelevant to this proceeding. contrary to appellant's position, respondent has been remained subject to dbi's may 22nd and june 3rd, 2014 notice of violation. appellant is not entitled to any benefit from the referenced executive directive because she has actively interfered with and has knowingly refused dbi's attempts to perform its task 3,

quote, perform a site visit and research to verify that there are no code violations including life, safety, and fire code violations. accordingly, dbi did and has not exceeded its authority in issuing the challenged permit. the appellant here has failed to present any evident whatsoever that the challenge permit is in any way noncompliant with the building code. nor has appellant demonstrated performance of the permit, it is unlawful in any other manner. so, respondent respectfully requests this board uphold the permit. >> there seem to be no questions, so, thank you.

thank you very much. >> mr. duffy? >> good evening, commissioners. joe duffy, dbi. the permit application under appeal, the scope of the permit was to remove an unpermitted kitchen installed by previous owner on legally inhabitable ground floor, [speaker not understood] touch up paint, revert this to last legal use. it got in april 30, 2014, it got approved on may 1st and issued on the first amendment, suspended on the th of may. it went through intake at dbi. it went through the planning department and building department plan check. the permit appears to be properly issued. the last legal use issue are

actually the permit holder has been updated dbi current holder several times over the last couple of months with paying visits to the counter to check on compliance and check on the inspection. so, i'm somewhat familiar with this just because i work on that counter. so, i did know when i started painting, okay, i know this one. so, the last legal use, there was a permit 97 08 6 07. and that changed the existing use on that was commercial and dwelling. and then the proposed use was single-family. and dbi did issue that permit and that permit got signed off. so, in our opinion, the last legal use would be a single-family dwelling. there was also a notice of special restrictions and connected with that permit and the approval of that permit

back in '97 was approved by the planning department per application and plans for final plans and notice of special restrictions attached to g 11 5 63 ~ and [speaker not understood] which what provided to us i believe by the permit holder, g 11 5 63 and i'm not sure, i don't think this is in the brief, but the plan started with a present application indicated on the first single-family dwelling on 2386, one bedroom, one family room, one full bathroom. said rooms have an independent access to the street by way of a front entrance and limited visual interior, still connected to the floor above. the restrictions and conditions first notice here by given are said first floor shall be used only as accessory to the dwelling above as under nc-2 zoning of the subject property and that this first floor shall not be used as a separate

dwelling unit or rooming unit and no border shall reside therein. that utility service and mailbox shall be provided for this dwelling solely on a single-family basis. so, i think the record shows it is a single-family dwelling. obviously there is a unit on the ground floor. the permit is to remove the unit. so, that's where we are. i'm available for any questions. oh, sorry, i should have noticed -- mentioned the notice of violation. dbi did receive a complaint after the permit was issued and suspend and the appeal was filed by the property owner who filed a complaint on her own property and donald duffy, senior building inspector has issued a notice of violation on may 22nd, 2014. a legal dwelling unit on ground floor for building permit [speaker not understood] which is the permit i spoke about. i referenced conversion from commercial dwelling to single-family dwelling.

provide access for inspector within five days of receipt of this notice. so, an inspection may be performed. failure to do so will result in further action by this department. and i believe we've issued a second notice of violation, but it's like the legal dwelling units are a lot of what we do and we sometimes don't get in and we just -- this violation was more or less asking us to get in and we never -- we still never got in there yet, but i think from what i read it's pretty obvious there's two different parties living there, so, that's what i would say. >> is there any specifics on the complaint itself? >> on the -- sorry, mr. fung? >> the complaint that was filed by the property owner, were there any specifics in that complaint? >> no, it was just that she was -- it was more to do with the

-- i don't have the wording on that, but i imagine it was, as most people do. on property they have tenants that come down and speak tous and they want us to take an action on it. so, it's basically telling us there is an illegal dwelling unit on the ground floor. we go look up the micro fold. they usually provide it to us. that's what happened here. >> thank you. >> thank you. mr. teague? >> good evening, president lazarus and commissioners. cory teague representing the planning department. as you probably all know, there's a lot of recent legislation to preserve and protect existing housing. the mayor's executive directive goes towards the same goal, and we definitely work in concert with that to do as much as we

can. in this situation, however, based on the existing zoning and the permit history and the directive -- direction given in the mayor's executive directive, we do believe this permit was issued correctly. [speaker not understood] and neighborhood commercial district. from a density perspective it could have two dwelling units or more. that's not really an issue. mr. duffy explained there was a permit from 1996 specifically to do work on the ground floor. we have a zoning administrative bulletin specifically on work on the ground floor that we attempt to control in a way that did not make it easy or likely to create an illegal dwelling unit on the ground floor. and it is not in uncommon for those types of permits to have nsrs or special restriction recorded on the property to make it clear for the most recent permitting the property is only permitted to be a single-family home and that's exactly what happened in this

case in 1997, such an nsr was recorded on this property. there's no subsequent building permit activity that i could see that permitted a second dwelling unit on the site. so, from a pure planning code perspective, the permit was issued correctly. the brief does mention the mayor's executive directive which does call for the department of building inspection and planning department to take some units that are being proposed to be removed, illegal units proposed to be removed and take them through more of a process to see if that's what we really want and if it's actually feasible to keep those. but that only applies to buildings that have three or more dwelling units and in this situation this building only had one legal and one illegal unit. so, these types of permits, we still approve over the counter. so, again, the planner who approved this over the counter definitely was following proper

procedure as we have been practicing it since the mayor's executive directive came out. i'm available for any questions you may have. >> i've got a question, mr. teague. so, a lot of homes in the sunset richmond and throughout the city have nsrs, notice of special restrictions, not allowing for occupancy of the lower rooms down. and evidently a lot of homes in those districts have rooms in those lower rooms down. so, is it the position of the planning that those are all -- any of the homes that have tenancy in them, they can have those rooms removed and the tenants be displaced? >> well, any dwelling unit that's been put into a building without the benefit of a permit, kind of irregardless -- regardless of its location. >> um-hm. >> if that building has three ore more dwelling units and you come in to remove that dwelling unit ~ then there is a process where it would go through a discretionary review process

and also process with the department of building inspection so see if it is possible to keep that unit. but per the mayor's executive directive, if it's a less than three units in the building, then that criteria does not apply. so, if they're anywhere in the city, whether it be the sunset or the richmond or the castro or wherever, if you have a two-unit building -- >> or in this case a supervisor ammiano: . >> single-family with an illegal unit, that unit may be removed in the [speaker not understood] permitting process. >> thank you for the explanation. >> sure. ~ single-family >> thank you. is there any public comment on this item? seeing none, we will take rebuttal from the appellant. you have three minutes of rebuttal, yes, if you care to use it. you have three more minutes to speak. i just wanted to reiterate that at no point in time has an inspector come in yet or these changes to be made. >> yes.

i still request that you deny on the premise that until that happens, it's hearsay. when an inspector comes in and tells us to make changes, we'll make the changes. but it hasn't happened yet. [speaker not understood]. >> just for clarification, who are the inhabitants of the unit? do you have -- a roommate? yes. she lives upstairs. [inaudible]. >> are there two units? two units, four tenants. >> but the one you are living in is the one in question. she's here to corroborate. there was a claim i was lying and she's here to corroborate. they've been trying to evict her. we agree once i'm gone they'll raise her rent, kick her out and have to evict her because it will be a single-family. >> thank you. there is rebuttal time for the permit holder. mr. roth, do you have anything

to add, three minutes, no? >> actually, i have a question for the attorney representing the permit holder. >> okay. my question is concerning the disclosure that was given upon your client's purchasing the unit. this is a full disclosure state. so, what did the sellers disclose in regards to the number of room count and if there were tenants in the property? the board has the disclosures that i have as part of my brief, and i believe they're also submitted as part of the appellant's brief. >> sure. can you tell me specifically in your brief where that would be?

i'm specifically interested in what was disclosed from the seller to the buyer. i do not -- specifically from the seller, i apologize. i misunderstood your question. i directed my response to what the appellant had provided. what you have in front of you is what the appellant provided via the seller. >> via the seller? via the seller. >> so, via the seller. so, that would be a disclosure. so, was there a specific disclosure given from the sellers that sold the property to your buyers in regards to the occupancy and the room count in question? there was, but there was -- it was indeterminant on this issue about there being a kitchen in the appellant's unit. also, there is an issue as described in the brief concerning what mr. duffy alluded to was in the due diligence process that was

engaged in by my client before affecting the purchase. >> sorry to interrupt. the sellers did not disclose there was a kitchen in the room down below? that's my understanding, yes. >> i'm sorry? okay. so, the sellers were not aware that there was a kitchen down santa ferx? that's my understanding. ~ downstairs >> the sellers? sorry, strike that. the buyer. >> that's what i'm trying to find out. did the sellers disclose to the buyers whether there was a kitchen? because the appellant has said that there's a kitchen. did the sellers disclose to the buyers when they purchased it that there was a kitchen located on the bottom level of the property? i would ask for a review of the seller's file for that. what i provided was what was provided to by the seller which relates to what appellant provided to the seller with respect to this unit which, my best recollection is that does not reference that there is a

kitchen in the unit. and also this unit was being carried forths as mr. duffy alluded to as a -- as the downstairs being carried on dbi's role as a commercial property up until -- >> i understand that, what inspector duffy does. what i'm trying to find out what your clients purchased it as, and what they purchased it as to what they actually received. they were certainly aware of as shown in the brief that ms. morales and mr. [speaker not understood] i believe was his name, were residing in that portion of the premises. i do not believe there was another kitchen. >> okay, thank you. >> anything further from the department, mr. duffy? >> just to clarify a couple of things that i didn't have

earlier was the complaint issued, mr. fung. the complaint was worded a legal dwelling unit on ground floor and restore to last use, single-family dwelling, changing this building into a single-family home. it was filed by the permit holder herself on her own property as i saw. someone mentioned a change of occupancy. i read that in the brief and i think the appellant mentioned that. there is not a change of occupancy. it's an r-3 in the building code. there is no change of occupancy. the confusing part of it as well is when i realized that when the property owner came down to the building department, i think she felt that there was a legal commercial unit on the ground floor and a unit above. and when we started looking into this, we were able to point out that the last legal use was actually single-family dwelling, because there was a permit back in april or