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 and in regard

to the, that it will with the planning code requirements or for any other requirement and they are noting and arguing that they plan, or depict the dj and property and this is a requirement for the purposes of the neighborhood notification, and they underwent it last year and there were no drs or to my knowledge questions about the project at that time and while they don't so the windows on the foreground and the elevations on the sheets, a three, and you can see that they do this was enough information for the department to review. and the guidelines, and again, they were filed under the planning code and the very definition of the dwelling unit

this will be a three unit building, and so with that, i am available with any questions, thanks. >> mr. sanchez, could you shed a little light on this and i think that i have a concept of what it is. >> yes. and i mean that it is just, it may not be a full, dwelling unit under the building code are for the purposes of the building code and actually, the inspector and i were just discussing it and we don't know the history of this, but presumably it was an accessory space or unit that provided maybe, the space for the life-in, help and in the older homes but it the planning code and definition, and which, in 1978 and further amended in 1988 says that the housekeeping, and the dwelling unit for the purposes of the code and i can see nothing clearer than black and white than in the section 102.7 the definition of a dwelling unit.

>> thanks. >> mr. duffy? >> it was reviewed by all of the agencies here with the building department review. beginning on the 9th of may in 2013 and completing on the 15th of january, 2014 and, that will be for all of the building code, issues. and so, i think that the permit itself, the, i saw some stuff on the plans that i probably would have some questions about, but issues that are normally we come across as a fire resistive wall there and he has a sliding door in there inside of the bedrooms and i am just reviewing that and i would have questioned that and it is not something that we can figure out during the construction with the building inspection division. and in regard to the permit application itself and i would say that they caught it on the job filling out the permit

application and from my time working at dbi with these, housekeeping units it is normally, on the building permit application that was part of the appeal package, and on the present usage, it said two units and housekeeping. and then, number of delling units it should be two and you normally see the (inaudible) and so, and then going to the three units and so obviously, as mr. sanchez has said there is a difference with the planning code and the building code in regard to the housekeeping units. i don't know why they would have mentioned legalizing a ground floor unit whenever you have documentation on that it is a housekeeping unit because it is legally a housekeeping unit. and so it is not that it was illegal unit, i don't think. and there was a cfc in 1966 that did reference in the two units on that housekeeping room and that is pretty strong language of the cfc will hold a lot of sway, and especially going back, to the 60s. and so if i was to look at that i would say yeah, it is two

units and plus housekeeping but that never got reflected on the permit, however, we think that as mr. sanchez said it is going from obviously, two or three full dwelling units now and i will say that i think that it is issues and build code wise i think that it is okay and bad language on the permit. >> and so, thank you. >> thank you. >> thank you is there any public comment? >> okay, seeing none, then we can take the rebuttal, mr. williams? >> steve williams again. and that does not answer the questions. if if you look at the history, you can see that it is created in 1937 and 1966 and it was not constructed with the benefit of a permit, it was constructed first, and then the permit was

put over top of it. and that is different. and that is different from the plain language in the statute. specifically to stop what is occurring here which is taking a rental and taking them out of the rental and converting it to a condo for sale and that exactly what is occurring here, whether it is the state of the art or attack my client or attack me, what is happening here is that the directly against the policy, just passed and which is applicable to these particular permits. and you know i hear from the departments that we could have done a better job. the position that they are taking in front of you, look at the plans that were given to you, the scope of work says that we are going to legalize the ground unit and change it from two units existing to

three units and so to jump up and say, well we could have done a better job. the permits are either wrong or they are right. and the permits and the plans. and in this instance are issued incorrectly and there is no obligation for a dr to be filed in order to catch these errors. and these errors are errors of law and errors in the code. and i don't see any profiles, of the adjacent buildings. and you saw, the deck and the window and doors that are not shown. but, if you look at the skant plans with which you were provided there is no profiles at all and there is no adjacent buildings shown at all and that is mandatory and that is a requirement and the neighbors can't tell what is going on without that. and the window that mr. sanchez pointed out is not on my clients building it is on the building to the east. and so, you know, i have a

feeling that they are incorrect as well but we can't tell because they are not complete. and they don't know more than just several feet of the proposed building or even the existing building. and so, i urge you to look at this code section, and ask for an explanation of why it is not applicable, because, this unit was not constructed with the benefit of a permit, and it had it overlayd on it and long after it was constructed and occupied for some time and the plans are substandard, and they need to be redone. >> thank you. >> mr. williams? >> yes. >> i am not understanding the impact that this project is going to have on your client. >> well, she does not want to live next to an apartment building, and she, all of the other houses in a row there, i have not tried to personalize this thing and i have not tried to talk about the various issues that are evident in her objections to the project. i have tried to find objective

legal facts with which the board should comply. but, all of the other houses in this row, are single family homes and there is apartment buildings on the corners, in this marian neighborhood but she does not want to live next to an apartment building. >> okay, thank you. >> thank you. >> so... >> mr. williams i am looking at page 4 of the respondent's brief at the bottom there is underlined text. do you have it in front of you. >> yes, let me grab it. >> okay. >> yes? >> you know, i think that what you are calling an illegal unit, they are claiming to be a permitted legal unit. and they provide here a permit

application number, and i think that i heard mr. duffy state that there was a cfc in 1966 for that dwelling, do you have facts to contest that? >> and the statute states that the unit must have been constructed, constructed, with a permit. and there is no application for the construction of a permit. and this, if you look at that permit closely, what happened was the permit was in existence for a long time and was legalized in 1966. if you read the language on the permit. and they went through and they didn't make them comply with everything that they are going to comply with now, sprinklers and fire and exiting and that sort of thing and so this was, you know, the history of these housekeeping units is that they only existed for this little snapshot in the 60s as a way to legalize moratorium on units that were already existing built after the war and this is one of them and this was probably put in the 30s when

that first permit that they referenced, which they claimed legalized it first in the brief. and 1937. and so, the language of the statute i think dictates that it applies in this instance because this unit was not constructed originally constructed, and it came later. >> okay. >> thanks. >> we can take the rebuttal from the permit holder now. >> the critical issue here is that the appellant seeks to apply the policies of the law. and says to you, that if we do not strikely apply this law, to anyone with non-conforming any sort of inlaw units, then, there is no purpose, there will be no buildings in san

francisco, to which this law will apply that is not the case, there are plenty of property owners who have constructed from ground up and maintained that unit until this day as an illegal unit. and they are in a quandry, if i try to legalize it, it is uncertainty if they are going to make me rip it apart and the cost of legalizing that unit in terms of code compliance could be so high, that they have been maintaining that as an illegal unit with a dangerous condition and continue to rent that unit to renters in san francisco. i urge you, that is not the case here. and that purpose behind that law does not exist in this case scenario. because, my client has built or i should say that the previous owners of the property have built the units with the benefit of the permit.

and now, because of the historic nature of the permit, it is unclear whether the ground unit was constructed with the 1966 permit, but what we do have is the benefit of that permit certificating that unit as a unit that had complied with the codes in 1966. so what we have here is not a dangerous illegal unit that the law contends or is looking to facilitate in terms of the property owners, to legalize, to maintain that rental spot here in san francisco, safe for the landlord as well as safe for the tenants that is not the case here, so the policies that the appellant urges is simply does not apply in this case. because my clients property was built, with the benefit of the permits, and as the inspector has mentioned, in the dbi's record, my client's unit has a

cfc indication, meaning it was, and it has a certificate of finalized completing, on construction, and so, you have asked the question about section or housekeeping unit and what that means, and if i may, take just brief moment to explain that. housing code section 400 defines a housekeeping unit as a unit that was built and legalized prior to 1969. and that is the case here. so even if the building permit history is unclear, as to how the unit came to be, whether it was built with, a proper permit verses being legalized what we do have here is a consistency as a housekeeping unit was built prior to 1969, and it was legalized prior to 1969. and as for... >> your time is up. >> thank you.

>> mr. sanchez? >> thank you, scott sanchez, planning department and i appreciate the comments from mr. williams and that his client does not want to live next to an apartment building, however this is a three unit building and it is legally a three unit building. in 1966 it did receive a cfc and it could be seen as a birth certificate for a building that is the valid use of the building, in 1966 the zoning was r3 which would have allowed three units and so i don't see any issue with that permit. the 3 r report says two units and two dwelling units with housekeeping, and so again, i don't see any issues with this and it is a legal unit and even if the record was less clear, and the question is whether or not this is a legal unit under the planning code and i think that everyone recognizes that we are in a housing crisis that

should not be taken for granted and so the amendments to the planning code over the years to try to see what we can do to preserve the dwelling units and 180 h was added this year, or last year seeks to preserving dwelling units and if the administrative record regarding a non-conforming unit does not provide conclusive evidence that the unit is illegal, it shalling presumed to be a legal non-conforming unit and i don't think that we need to get to that point because the record is clear that this is a legal unit. and i know that the appellant would like us to go through additional process in 207.3, however that is only to legalize the unit. and you know if we were to subject every legal unit to a process to legalize, i know that we have very strig gent requirements you have a legal unit and you do not need to legalize a legal unit. >> and if further regards to the plan and the plans, and

they do show as i think that mr. williams did see on the plans is the additional outline of the adjacent buildings, and now, i will submit that given the scope of the addition is just at the rear in terms of making the decisions about the rest of the building, there were no changes, so it really the important part is showing what is going on at the rear, the plans do so that. there was a neighborhood notification, time for comment and input, and questions if there were any questions. and again, no dr was filed, and i think that the plans are accurate and respectfully request that the board deny the appeal. thank you. >> mr. duffy? >> just to briefly commissioners, mr. williams said that we could have done a better job, the department. i didn't say that, i said that the building, and whatever the building permit application could have done a better job that is done by the permit applicant, whoever comes into the building department, what happens the staff could have

looked at it, but it is the permit applicant that fills in the language on the permit. not, i didn't say we, needed to do a better job. and on the 1966 permit, that is in the permit holder's brief, i get what mr. williams is saying that there is no permit to say from two units to two plus a housekeeping unit, i get that. something happened from 37 to 66, however, it is clear comply with the board of health and it says two flats and housekeeping room. and we say that permit is off and give a certificate of final completing and i think that is strong as you have heard already and i just wanted to say that. okay. thank you. >> commissioners the matters is submitted. >> >> i have a quick question for counsel for the permit holder? or the permit holder, either one, i just wanted to know if any of the units are currently occupied with tenants?

>> are any of the units occupied by tenants? >> no. >> they are all empty, okay being thanks. >> i live there. >> okay. >> commissioners, i think for me, it is clear the issue is whether the reviewness was legally permitted and therefore, it is not within the bounds of the new legislation, and i concur with that position. >> i also agree. and as someone that looks at 3 r reports, this is a dream 3 r. i mean that it shows pride of ownership for the building and it is very specific and could i have some cfcs too, i would

agree, with commissioner fung. >> i have nothing further, i would concur, i agree. >> i am going to move. >> go ahead. >> i am going to move to deny the appeal, and up hold this permit. on the grounds of code compliance. >> we have a motion then from commissioner hwang to up hold this permit, on the basis that it is code compliant. on that motion commissioner fung. >> aye. >> vice president hurtado? >> aye. >> president lazarus? >> aye. >> commissioner honda? >> aye. >> thank you, the vote 5-0, and this permit is upheld on that basis, thank you. >> items 8 a, b, c have been moved, and we will move to item 9, appeal 14-119 smart cycle

recycling verses the zoning administrator,405 - 10th street. protesting the issuance on june 05, 2014, of a request for suspension (requesting that bpa no. 2014/01/14/6245 be suspended for the reason that this permit was issued overthe- counter in error without the required neighborhood notification as per planning code section 312). >> i want to thank everyone in the room for being patient and we will start with the appellant. who has 7 minutes. >> good evening, madam president and members of the board. my name is jay houten and i represent smart cycle recycling and this is the owner, and these are owner of the appellant. and i want to start off by saying that i think that all of the members of the board can agree that we need more drop

off, recycling center m san francisco and the state requires that there will be within a half mile of a super market. >> san francisco does not have convenient locations in 41 percent of those spots, costco across the street generates tens of thousands of recycled containers and they don't have a drop off spot at their facility n 1990, there were 35 centers in the city and now there are only 14. and san francisco has a goal of sending zero waste to a landfill, by 2020. and how are we going to get there? recycle, reduce, and so, question is we have to have them, where are we going to have them? the spot where this is being proposed is a mixed use location, and the actual lot itself, is a service arts and light industrial zoning, and the definition of that, type of district, is that it is designed to protect, and facilitate, the expansion of the light and industrial

activity that is exactly what smart cycle would like to have happen here. and now, there has been a great deal of anger, you might have picked up in some of the opposition in the one opposition brief that mr. manex submitted but, they are very upset about this environmental compliance being at that spot, however, the family recognized the recycling materials that they generate are the ones that are going to be dropped off there and used and taken away. and now, i just want to point out that he concludes in the opposition brief by saying, a buy back business needs to be located in a non-residential industrial area and this spot is zoned for light industrial and this is a classic indicate of ninbe and he completely ignores the zoning laws in making, "that he is making and so the only question before the board is whether this business, is a new use. and now, if i could just turn on the overhead here.

this is the statute. this reads that a public use and has to be a community recycling center to be deemed a new use, this definition is a public use that collects stores or handles recycled materials, including, glass, and glass bottles newspaper and aluminum and paper and plastic and other materials that may be processed and recovered if within a completely enclosed container or building having no openings other than fixed windows are exited required by law, there will not be any enclosed containers or building on this property as you look and see in the photos,

>> and this shed and these, basically big one and the garage bins with the plastic bags in them. and a forklift. and in the end, this is what it is going to look like. there is no enclosed container and no building and so that is why, four planning department employees determined that there was not a new use, permit required for this. and so in reliance on those four employees, the determination, and smart cycle signed a five year lease that is required to pay $3,000 a month, and now the fact that he substantially relied and obscured a liability on the based on the fact that this permit was a non-new use permit, means that he has a vested property right in the permit as issued it is a constitutionally protected right, the court, the california courts will void the planning department's decision should you guys not deny this

suspension and i will site a couple of cases in support of that, there is avco verses the south coast recommission, from 1976, and 17 cal third, and 1785 and another case, volero v, the city of san diego. and so, if the board, grants this suspension, smart cycle will encan youer well over 300,000 in damages and out of pocket expenses and as a result of breaching the lease. and so, unfortunately, if the permit is suspended, smart cycle will seek to recover those funds and they will do it because they have a vested property right that is constitutionally protected but they will also, hold mr. sanchez, who issued the letter personally responsible, and understand that a lot of these decisions have immunity applied to them but they the immunity

statute here is 820.4 and that requires and states that a public employee is not liable for his act or admission, exercising due care, and in the execution or in the enforcement of any law, it is our contention that mr. sanchez did not exercise due care and the test there is objective reasonableness and was it objectively reasonable to change this permit to a new use permit. four employees made that, and the change came after he contacted the building department and he was a licensed contractor and he exerted his influence to have this change occur. and so, what we want, is to have the permit issued and treated as it was originally issued, and we don't want to have to do the neighborhood notification, because mr. sesar cannot afford to do that and he is already six weeks behind in

opening this business. all of the financing was planned around the permit issued because it was non-new use. and the important point here is that the lease, is guaranteed by the existing business and if he breaches the lease and then he could potentially lose that business, which is another source of damage and a potential lawsuit and so we will ask that you will grant the appeal and deny the suspension. i am available for any questions. >> counselor? >> could we hear the vested interest argument every meeting. you or your client want to respond to the novs? >> i would like to mention that that is not an issue to be heard today. that is an issue that is set for hearing on the 22nd. we can respond to them, but, this hearing, what has occurred with the opposition briefs that you received, is the mr. manex

is attempting to convert this hearing, which is limited to that one legal question is this a new use or not, and convert it into a neighborhood notice hearing. the way that those are presented, is judge, jury and executioner, he is innocent until proven guilty, it is just a notice and i have not had the chance to review the facts and circumstances of the tnotice, except for the second one, the second one i know was improperly issues because you were allowed to repair the concrete, pads, under section 106 a-2 of the building code. and i don't know about the first one i have not dug into that one and so i cannot address the merits. today is not the day that we need to discuss that in terms of whether there is any merit. >> i have a question as well. is this the only location that this company operates in san francisco? >> i believe that it is. >> they have, and their main industrial processing facility is down in bay view.

and i don't know if you have any other drop off locations. >> so you have other locations in san francisco. >> no. >> well, >> you need to speak in the microphone. >> it is the processing facility. and it is large and industrial. >> did that location in the bay view require a cu? >> the conditional use permit? >> i am not sure. >> did that location and your bay view location require a cu. >> please respond through the microphone. >> i am not sure what is a cu. >> continual use permit. when you... >> well, i did that for several years and so i am not sure. >> maybe i will ask the department. >> yeah, yeah. >> and any other questions? >> no. >> mr. sanchez.