and having induced them to apply for a permit, the appellant, property was stopped from protesting, and the very location that she asked at&t to apply for at. second, i remind the board that you have the novo authority here and that means that you can do anything that the department can do. under section, 2703 of the new legislation, you can wave the entire preapplication process for the permit if there is no other feasible location and that would seem appropriate under these circumstances. given that the department's position is that the street is the ideal there does not seem to be a reason to repeat the entire month long process that will involve the considerable out weigh of the department and

city resources. and it also has the effect of denying these services to everybody in the neighborhood who wants them and there is a strong demand for these services. and it will not be installing the cabinet and of course it drives up the cost of the services that are available and because it leaves an effective monopoly on large parts of staoet and accordingly, at&t asked that you affirm the department's decision and deny the appeal. >> thank you. >> thank you. >> and miss short? >> department of public works. we think that the only thing that i would like to rebutte is that the intention of waving the preapplication process if

there is no other feasible location. has to do with technical constraints that will prevent an smf from going else and i think in this case, while we found that this was a perfectly adequate location, the first time around and the type of location that we would thought made sense for the neighborhood, and i think that i don't believe that it is true that there is no other feasible location. >> thank you. >> commissioners the matter is submitted. >> i guess, and i would like to ask a question of our city attorney, and i know that this has come up once before. but i wonder if the city attorney has a position in regard to mr. johnson's argument that the local ordinance conflicts with the state law. >> well, the board of appeals is not a lawmaking body of the city. and we must follow the law of the city and so we are bound to

apply to the ordinance and now that it is effective and i don't think that we have a choice in that regard. >> okay. >> i guess that i would be inclined to follow the same procedure that we followed before. for the sake of consistency which is that we are waiting for dpw to issue the guidance and we believe that the ordinance applies retroactively to this case. and we would have to continue it in order for dpw to issue its guidance and we can provaoed from there and i don't know in that guidance will

require starting again, it would seem so, given that there are additional requirements in the ordinance that don't exist in the prior, and i don't agree that it is predetermined that dpw would grant this permit, under the new ordinance, as miss short clearly stated it is completely additional requirements. and the idea, i think, behind the ordinance is to have the community have more input and make sure that the process is fair, and that there is community input, and that there is communication between at&t and the community, and you know, the reason that we have this ordinance is that because that has not happened in the past and in the community has been rightly incensed about that situation. and so, my intonation would be to do what we did last time and so remind me that we continued it to a certain date after which we believed that dpw will issue its guidance.

and i thought that we would deny it. >> yeah, we did deny. and what did we do last time? can someone remind me. >> continue the case. >> we did continue it. >> yeah. >> well, the alternative is that of course, we could, we could. >> call the appeal? >> anyone else have thoughts? >> i am on the same line of you vice president hurtado, the reason that we have this, the supervisors created additional legislation and put that in place, was because of the lack of community out reach, for the cases that have been heard and in this body, and also as a tax payer that is a huge waste of

city resources and i believe that if there was proper disclosure and out reach and properly, we would not have needed the additional legislation. and let me just bring up one point and i am not in disagreement with that but it does raise a question as to which permit that are continued and then are sort of a limbo, and i don't know if there are a lot of these still left, in the pipeline, and but the question is, perhaps, we want to make sure that the process is as clear for all parties, and i am aware that there are parties in limbo and i am sure that dpw is aware of that as well and i would hope that they are

guiding to take that into account and have a process and a procedure to deal with those cases. >> i was just thinking in terms of those that we would continue. >> right. >> i am not in favor of continuing things on the calendar either. i just don't see any way around it given the ordinance we can grant the appeal, and at&t will have to apply on the new ordinance >> and the only issue that i have with that is that at the time, that the process occurred, it was a valid dpw decision, it is only because now the new ordinance is retroactive that we are in a different situation and i don't see a legal basis, to find to grant the appeal. >> and i think that it will be the basis. >> the new ordinance is the

basis. >> well if my fellow commissioners are inclined to go that route, we could do that and that might be a better procedure. >> may i ask a question of the department? >> please. >> miss short, i don't think that anybody on this want us to belabor these cases. and bring at&t and yourselves in terms of the duty and constantly back here. just, what is the department's recommendation, in terms of how we handle just the limited number of cases that are here in between two applications and in the fact that the ordinance is now in place? >> sure. i would say i think that the most expeditious process would

actually be to grant the appeal. we are hopeful that we will have our draft guidelines available in the next week or two. and we are scheduling out in to september, and so i think that actually it would be fastest for all parties, to grant the appeal and have the process start because i think ultimately that when we analyze these cases in light of the new ordinance, that will be most prudent way forward, because there are clear requirements in the new ordinance, that these cases will not have met. so we could do that analysis, for you, but i think our recommendation would be to allow the appeal. >> okay. >> i would bite the bullet now. >> okay. >> i agree. >> i agree. >> do that way, then. >> i will move to grant the appeal, on the basis that the

new legislation requires. >> okay, thank you. >> okay. >> we have a motion in front of the vice president and again, it is to deny this permit, with the finding that the new smf ordinance requires the denial. >> yes. >> and just even though it is one permit, it is two appeals just to be clear. >> excuse me. >> two. >> right, two. >> hold on one second. >> bring forth the department rep again? just for the clarity purposes. >> i do apologize, i should have stated this earlier.

in order to insure that at&t is not prejudiced that if you do grant the appeal to wave the one year probiks and i don't think that we have the authority to do that without you. >> i was going to bring that up. >> thank you. >> i would amend my motion then to include that. >> thank you, miss short. >> okay, may i? i don't know that the board can wave the requirement, but i don't think that it is a problem because at&t will be applying under the requirement of the new ordinance and so it would in effect be turning in a defect in the old permit by complying with the new ordinance requirement and so the one year requirement should not be a problem. >> put it in there just in case. and i think that the permit if i might add, the denial is on the basis that the old permit does not comply with the new

ordinance. and must be part of the new ordinance to be granted. >> thank you. >> yes, that is more clear, thank you. >> so the findings are actually for these two permits that they do not comply with the smf ordinance. >> it is one permit, two appeal and two issue dates, and so it might be clearer just to say that there are two. >> okay. >> we will have to issue two decisions. >> okay. >> okay. >> yes. and you still want the application with the one year does not apply. >> yes, so it is not clear that we are not trying to prejudice at&t. >> so then the motion is to deny both permits with the finding that both permits do not comply with the new smf ordinance. and with this clarification of the one-year bar, for

reapplication shall not apply. >> okay. >> on that motion, commissioner fung? >> aye. >> commissioner hwang? >> aye. >> and the president is recused. >> commissioner honda? >> aye. >> thank you. >> the vote is 4-0, and both of these permits are denied. >> we are going to take a 15 minute break and we will be back at 7:0 >> welcome back to the meeting, we are on item 7, appeal, number 1 4-096. s tamera broines verses the department of building inspection.

1767 northpoint street. protesting the issuance on april 28, 2014, to pat howson, alteration permit (one-story rear addition; legalize ground floor unit; convert from 2-unit r3 to 3-unit r2; new fire sprinkler system to be provided under separate permit). >> and we will start with the appellant, who has 7 minutes, the appellant's attorney. >> thank you. and good evening, i'm steven williams, and i am representing tamera who owns and resides in the single family home next door. our appeal has two bases, the first of all is that the legalization of this inlaw unit for a different zoning, from two units up to three units must be compliant with the new policy passed by the board of supervisors, which was aimed at preserving and protecting the housing and the same principles of retroactivity that you supplied in the previous item is directly applicable to this item, the new statute and i laid that all out in my brief and second, the plans for this project are not code compliance and they do not meet the needs required, and there is no profiles of the buildings and

because of these deficiencies they cannot tell what the full impacts of the project are, and so on the first issue of the non-conforming unit, this is one that we really could have used a reply brief and they took it away a couple of years ago and i had no idea that the defense out by the project sponsor would be that these permits and plans, to legalize these unlaw units are not plans and permit to legalize the unlaw unit and take a look at the permit which is the subject of appeal and it states right there, and i know that you probably have copies tf and i have highlighted the copies and it is for the purpose of legalizing the legal in the unit and to change it from two to three, and the plans that you are given by the sponsor say the same thing and i have highlighted those and blown that up and to say to legalize the grand floor unit and change it to three units and so, you know, that, the opening brief, that they make the claims that

the plans, you know, were for some other reason, does not make any sense for me and both of these approved plans and permits to the specific reason is to legalize the inlaw unit and to convert the building from two units to three. and so, the project sponsor, now claims somehow that the plans in the permits that was issued is incorrect and so they have to make a choice and stated on page 4 of the brief that this was legalized in 1937, under a permit to add a bedroom, but a bedroom is not a unit and there is no kitchen and no bath and even if you accept that premise, that means that these permits in front of you were issued in error and incorrectly. and so, since these permits are legalized and to expand these non-conforming units that as a matter of good policy and law, the new code section must be applied and as a note of explanation, one of the confusing issues in this case is the housekeeping unit issue

and these are a historic anomoly and a living contradiction and the planning code calls into the dwelling unit and says that they are not dwelling units but regardless, of what position that you take on whether it is a dwelling unit or not, section 207.3, of the new section, must be applied because this is exactly the type of situation that the board of supervisors had in mind when it passed this legislation, to protect this valuable rental stock and the project, sponsors the attorney, urges on the board a very extreme position, with the on the new legislation, that they assert that if a permit has ever been issued for one of these units and then it is outside of the purview of the legislation and therefore in the language of the new legislation, was not constructed, without the benefit of the permit and that kind of interpretation is placed as a matter of law and it would be very hard pressed

to find anywhere in the city, a unit this old, that was not built, or was not built at some point with the benefit of some kind of permit. and, an interpretation as narrow as that would severely limit any application of this new statute, and the plain language of the statute, states, and what the board intended that these inlaw units have to have been constructed with the right kind of permit, and a permit that applied for a new unit. and so, when you look at the exact plain language of the statute, that is or did not happen here. and there is nothing in this permit history, that shows that a new unit was ever applied for and built. and this unit was not constructed with the benefit of a permit. and now, maybe later a permit was obtained and that does not mean that it was constructed with the benefit of that permit and so a bath and a kitchen was

added to the bedroom in 1937 and 1966 at some time and it does not mean that the unit was constructed with a permit, and so that is the plain language of the new legislation, and the dwelling unit was in fact constructed without the benefit of a permit and so there is no history that shows that. and we urge you to apply that section and they also repeatedly say that because it is a non-conforming legal unit, therefore the section should not apply and that does not exist, and in fact the legislation was written, if you look at section, e3 g and specifically for those types of units. and on our second issue, that simple, the plans don't comply with the planning code and they don't comply with the directives from the department, and the department first wrote, could i have that? >> first wrote to the project sponsors, and said, please show an outline of the adjacent dwellings on the existing and including the projections such

as the decks and enables the neighbors to easily understand the size of the proposed additions in addition to the structure and that was never done and the department wrote a second time, to the project sponsors and said, again, please show the full outline of the adjacent dwellings on the existing and proposed elevations including the projections such as the decks sxets and the reason that the department was asking for that, and that is what is required by the code and section 311. and it states that specifically, that it is mandatory to have each side elevation shall include a full profile, of the adjacent buildings in the foreground of the project and windows and light rails shall be illustrated and look at what is in front of you and there is no, and adjacent building shown in the full profile and not at all. and in fact, they missed the openings, on the building next door and they are not showing it at all and there is demolition going on in this light rail up to the third floor and so this is not shown at all, on the plans in front

of you, they are not code compliant and so we are urging the board to apply the new statute and protect this housing, and also, these plans have to be revised in order to further the code. thank you. >> thank you, we could hear from the permit holder now. >> dr., hosen and i would like to start with, a couple of slides, depicting which is exhibit h, who are respondent's brief and it is the first page to the three r report.

you will see under item number six that the property was originally built as a two family dwelling. and it was later changed, the present authorized occupancy or use is 2 family dwelling and a housekeeping room. and i did make an error, if i have made the representation the permit, that was issued in november, 27, 1937 was the permit that had authorized the construction of the ground floor unit and it is actually in fact, the 1966 permit, which you will find the notation cfc, 2 fd, housekeeping room, what that indicates is that particular permit required my

or the predecessor to my client to construct the ground floor unit and it was up to code and it was complied with as you can see in the 3 r report. so the premise that the appellant argues and you have heard over and over again, that the policies not the law, but the policies ought to apply, that is not what this board is here to do. you are here to apply the law as it was passed by the supervisors to apply the new law, here we start with a premise, that all three units, and my client's property were built legalcy, with the benefit of proper permits that were issued by the bbi. and looking at section b of

this statute, that it is klao*er clear that the client has a property that has three legal units and in fact, in connection with my client's condo conversion, we have a tentative map that was approved by the city and it states that it is approved for a three condo conversion and that is in exhibit q. and to the respondent's brief.

the city has approved the map for the three condo conversion and that tentative map was recorded on august 8, 2003, and excuse me, 2013 and according to the code when the map is for the agencis that is a vested right of my client and that is the case here. and every inch of my client's property, has been built with the benefit of a permit, and my client has spent two years working with the city to do that and i will have my client speak to the history of the building, in a moment, but i would like to invite the project manager jack scott to speak to or to describe the

project to you. good evening, commissioners my name is jack scott and i have been a licensed contractor in san francisco for about 40 years. and i will be the project manager for this project on north point. and this was a site permit, application, it complied with the developments and the department of building inspection and the san francisco planning department have scrutinized the plans and reviewed the historical data and approved the project. the appeal is without merit and in my view is retaliation because of the request to

remove a non-code complying fence at the eastern property line, he had no choice but to file a complete with dbi. and this as you can see it, is a 9 feet above the grade. had a stairwell going down to the appellant's backyard and 1783, and 1765 and 1767 will be a state of the art project. utilizing solar energy throughout and gray water recycling and will capture and store rain water for use in

toilets irrigation, fire protection. open air circulation and are integrate to the design and there is a three car off street parking and the 311. three requests were ignored by the appellant, and not one single application and the deversion has been logged, and he joined the san francisco lottery for conversion and waited seven years for the name to be called, the government agencies responsible for building the approval and the condo conversions have all approved this project. >> i am sorry but your time is up. >> i am sorry? >> your time is up. >> you can add on rebuttal.

>> okay. >> scott sanchez and i will be brief, the property is located in the rh2 and does allow the maximum dwelling permit and the neighborhood notification for the rear edition last year for 30 days between march and april, no reviews were filed at that time. and under the planning code, this building does contain three dwelling units and it is an existing legal, non-conforming use and there is a permit for 1966 which says that it is a two family dwelling with a housekeeping unit and the appellant is correct under the planning code the definition of the dwelling unit includes housekeeping unit.

we will review it as a three unit building and there is an interesting qirk with this because under the building code they will consider this as a two unit building with the housekeeping unit and it is not subject to all of the building code requirements the permit language could have been clearer and it could have stated that it went from the building code for the purposes of the building code and there is no change there, but what the project sponsor is doing is that they are subjecting themselves to the higher level of scrutiny and review under the building code and they are going under the r2 occupancy rather than the r3 under the building code and there may be more to making the improvements to the building