it was changed from the commercial to a medical office and pharmacy. the public hearing was held on june 11th and for consideration today it was continued to submit additional evidence regarding it's status in the formula retail regulation and commissioner president lazarus you said to comment on the video >> i watched the video of that hearing he feel i understand the issues. if i may i want to ask mr. sanchez to address the board regarding some of the changes that occurred in the laws on formula retail use please. certainly thank you. scott sanchez planning staff so since the time of the last hearing on it the board of supervisors has introduced new

internal controls adapted in 2014 for the interim zoning controls in the castro neighborhood commercial district for discretionary review for my formula retail eye even if the project sponsor removes one or more formula retail features. on july 18th the mayor signed the controls and per the controls any proposed use within the scope of these interim controls that has not received a decision by any agency shall be covered by the interim controls based on the interim controls it requires a conditional use authorization because the pharmacy formula retail were

changed before the effective date of the controls but the final action which this hearing has not taken the project is subject to the controls and requires a conditional use authorization and this was outlined in the brief if you have any questions, we'll be happy to answer them >> i think you should also clarify the extent of the release. >> so some of the history the permit was suspended in january the entire permit we have an appeal hearing the board found a portion of it could move forward the medical service use. currently under the definition of the medical services are not included but pharmacies and other retail uses are and we determined the pharmacy was, in fact, a formula retail control. so the suspension the action of

the board to release the suspension on the medical use but not other than the pharmacy. after the time of the boards decision that's when the project sponsor so you get to remove the formula retail features and at this point, i restated the entire permit that was appealed and the appeal before you now. so, yeah that certainly is before you now is the entire permit. so i think based on the boards previous decision to release the suspension of the medical service but not to the formula retail use that q's requires a conditional use authorization. that was related to the size requirement >> correct.

>> so, so also my memory was a little bit different. in that it was not determined that was a formula retail but potential a formula retail use that required further analysis either way is that not - >> that's my recollection. >> it was, in fact, a formula retail use. >> did we discuss all the factors. >> i had part of our presentation included the evidence of the signage the fact they had more than 11 locations in the conditional use authorization. >> and we distinguished it. >> there was a lot of discussion about the formula retail i remember one commissioner saying that was

formula retail but for myself you don't believe i don't recall that i made that determination right then but we were looking for further analysis. >> do our minutes show anything in that regard? i don't know if we have them available or not >> i don't believe the minutes speak to that. >> my determination at the time of that appeal hearing the initial appeal hearing that was, in fact, a formula retail use. >> we remember that. >> commissioner that's an important distinction and what we may need to clarify whether this action could be moved given the change and i'll call it law i'm not sure that is the right term.

so i think we need to listen but that could be an issue for us as well >> i mean certainly i think this is a fairly unique case. but the interim controls are now in effect and they apply to this use because we have certainly made a determination nephews a formula retail use. >> well excuse me for interrupting but you had to make that determination; right? >> yes. >> one would hope. >> so commissioner president lazarus are you president the parties to come to speak to the board on the question of the internal zoning applies and i feel a that's part of the matter roadway. >> not for me. >> no? i think we should hear them out

in response to what we have requested from last time and precede rather than looking at to the it as a new issue i it would be helpful to find out whether it's formula retail >> we'll start with the permit holder for the first response. >> he requested a second swearing in he was not here at the beginning. >> okay anything else? okay >> raise your right hand testimony you're about to give will be the whole truth and nothing but the truth? >> i do. >> thank you. >> thank you. >> not filament this is the 7 minutes. >> okay. thank you very much commissioner president lazarus

and commissioners ryan patterson for the permit holder is health care foundation. i'll start by just briefly touching on the issue of the interim controls and ems for the permit holder organization to speak to the actual criteria for formula retail to show why it has innovates and is not formula retail which is what the board requested last time. i'll speak again briefly to the issues that zoning administrator just raised. as of a they recalled matter it should be clearly made to the board the question before you tonight is a straightforward one whether the error and discretionary were issued when it was released as the suspension request. this is not a more act burgers question whether the permit should be issued under the rules

of the board and the city charter it is an abuse of the discretionary review and i'll get back to that as a backdrop there are thousand plus hiv and aids patient that will be impacted. so this permit was issued on january 14th and the suspension was on the 23rd there was no finding of the formula retail use. and if you see the highlighted portion of the suspension request it specifically says there's no formula retail and asked for additional time for the open question of formula retail >> is there anyway to make that bigger please.

>> this notice of decision i know you're asking for regarding the minutes from that meeting explicitly states the board is up holding the suspension requests as a related to formula retail that suspension request had no impact so they upheld the suspension to clarify that issue. when the zoning administrator issued his zoning request it had no determination of formula retail use and in fact, it explicitly shows that is an open question and the board found in formula retail request if you review the boards decision and the boards minutes and tape

you'll see that's not the case. so at this point the alternative points i'll speak to the formula retail >> hi dale with the bay area retail function whether we quality for formula retail under the name castro pharmacy will equal one, if the permit were e restated typically the formula retail issue becomes mute but i'd like to address the array of merchandising is not standards listed we buy from a variety of manufacturers and your during drugs are different labels donate to the standardized. the facade of our building is different.

this is the proposed site an orange color this is our pharmacy about 5 hundred feet away it's brown and this is the color of our current pharmacy a pail yellow. in terms of impervious this is our pharmacy on 18 street different than the 1 on church street 3 will be long and narrow building you'll have a couple of buildings mostly walls and the color schemes are different we don't require the uniform of apparel this is our church street pafrm lastly wears a tie and the tech wear what we want. we supply company themed shirts for people during holiday parties.

standardized signage again, all our castro signage is different because it's a new business. at the top where we at there you go. this is the logo this is the proposed awning on the outside and the black awning and the interior alcohol esteeming scheme match the logos we have no service mark this is unique once the business is registered so we don't feel it meets formula retail that was intentional we were working to not meet the formula retail so we could get our facility opened. thank you >> thank you. >> so on the issue of those interim controls and whether there's a finding the zoning administrator suggested he made

a determination they previous hearing but first of all, he did not opine on what he thought important importantly there sthfs under appeal you had the jurisdiction the planning, zoning administrator didn't have the jurisdiction to make the finding so as a formal matter it was impossible and as a practical matter it never happened. this issue of the interim control there are did you processes and federal lawsuit pending to seek to invalid those controls and at the case of this board normally allows on this treld case explicitly states that this type of cases our looking to the zoning administrator to make the

decision >> thank you very much. do we have rebuttal time >> yes. thank you. if you'll go back to that. that particular decision is brought forth a lot here with respect to what this board can and can't do during the course of the elective changes over and over control changes. your point there was that didn't necessary apply that is different than what we've heard historically and in most cases commissioners you apply a standard of review to quote this case the question is whether the permit should be dpraptd that's the standard. in a case you're hearing an appeal from the zoning administrator decision the question is quote whether the

suspended order of the permit had been laugh it's an error of discretion standard if the question is whether the person erred you're only allowed to look at the law at the time did he error when we made the decision it's not a standard of review and the board zoning rules posted on your website that stated on page 5 so as a result there is simply no finding of the formula retail therefore the interim controls don't apply even if they didn't violate the permit holders

rights and protection of law as an ethnic matter we're talking about more than one thousand hiv patients and - >> that's not the question. >> commissioners, i thought perhaps tide before we continue i'd like to ask the city attorney to weigh in on this. >> on that issue deputy city attorney robert i'll ago that in a error abuse of discretion case you would apply the law at the time the administrator maids the decision i also say it's clear to the board if the zoning interim sgoen control resolution applies to this project because the zoning administrator or the planning department decided that

the project was formula retail use eaten there are subsequent elimination of the formula retail use features and whatever decision you make on that issue before you now is going to be eir relevant because the city is required to follow the law in effect at the time and to whatever decision you make on the issue before you now that's been spoken to will not have any effect regardless of the item. >> okay. thank you. so i think we're ready for the appellants to speak? yes? >> by the way, this might be the time to talk to the issue i

think that's fair and good evening. i'm andrea the executive director for the castro upper market benefit district. we don't have any attorneys or access to attorneys we're not going to speak about the internal control swab elbow i do want to remind the commissioners that i don't have the date for the letter from the department of department of building inspection but there was a letter from the department of building inspection that did state and kind of was reharshly the whole dates and the entire case and stated in the letter that did planning department determined this was formula retail and that the march 19 board of appeals that determination was upheld and in

that letter i'm sure scott the zoning administrator has it. but i want to also speak to the fact that the reason why you say the zoning administrator changed his mind was because the project sponsor changed the plan and they changed the name of the pharmacy so that it would not as the attorney said they wouldn't be formula retail. yet all the marketing going out about this currently nothing is mentioned about the castro pharmacy is all aids health care foundation, in fact, on their website roadway i don't know if you can see that i guess you can't >> we can blow it up. >> lilly have it here. it their website talks about,

you know, helping them out, etc., etc. and then it says the aids health care foundation new castro pharmacy and incline and asked people it write letters for the pharmacy on castro street they don't call it the pharmacy but the new pharmacy on castro student we're appealing because we want a voice they should go through the conditional use system and they have not taken a position go we say because the voters haven't had a say they said that we want to have a say on formula retail and the community is saying we want to have a voice and we want

to have a voice in the look and feel of our neighborhood commercial district as the zoning administrator said this case is unique because in a very, very beginning there was an error in issuing the permit over the counter. if that error never happened this project would have gone to the planning commission. and it never would have seen the board of appeals it would have gone straight to the planning commission because there's or there were conditional use questions and conditional use about the formula retail the planner at the counter made a mistake that's when they pulled that the permit and on suspension i think a mistake was made if that mistake was never made it would have gone to the planning commission may none of

this wouldn't be here we wouldn't be here tonight when it goes to the planning commission there's a broader process and another process around public hearings and all the neighborhood organizations are notified there's a public notice so when commissioner fung asked how come there was no one here from the aids community and asking that issue no one know about that there wasn't that broad notification and if it had gone to the planning commission if that first mistake wasn't made this is why it's a unique case because of the initial

error in issuing that permit over the counter they realized there was a mistake and the permit was suspected and the permit sponsor appealed that. that's our understanding and i just want to let you understand we're here because we want a voice it's not because we don't like the neighborhood aids folks. >> commissioners should we move into public comment i don't know if you want to give any more times to mr. sanchez do you want him to speak for broadly or take public comment. >> i'd like to have him

address one issue. >> thank you scott sanchez i promise to be brief. but i think it's clear from the record and the recommendations made by the permit holder at the time the permit was issued in error this was, in fact, a formula retail and after the hearing that we had here on the suspension we argued that again, it was formula retail use they did make changes to no longer be a formula retail it was changed in pharmacy to castro pharmacy that's not a formula retail i agree the changes they removed the formula retail defining features and we realized the suspension at the last hearing on this matter i pointed out that's the building application

holder it's not a formula retail use. as noted by the council this matter is suspended so it's really before the board to consider is that a formula retail that's why what you asked him to give more information to prove there were not a formula retail since that time the information has become available submitted with the appellants brief they showed a sign on the building advertised as health care aids foundation we're happy to share with our neighborhoods an aids health foundation 135ir78 that's how their advertising it you can consider that as a non-formula retail castro pharmacy or the something that's not a formula retail use or an aids foundation that's

important. further the fact they were a formula retail use at the time the permit was issued itself grounds for revocation on the code to determine to have been at the time of application for a formula retail use that didn't identify the use as a formula retail use is it speak subject to revocation at any time further adding to that discussion. i said earlier this is a unique matter and look forward to what the board has to rule. thank you >> mr. sanchez i wasn't here in june so a question which is relevant. is that really as easy as a name change to get out under underneath why wouldn't any potential kind of boarder line

applicant do that with conditional use and everything else >> that's an excellent question it can be that simple surrendering that was that simple. over the past year we've been studying our formula retail controls and seeing how we can improve the controls looked at by supervisor wiener and this is something that he thought was a loophole in the process to deadly weapon with those situations. we've seen it in other cases where something that was identified as a formula retail use made changes so they didn't make the thresholds >> made a name change. >> in some chaingz cases it is more it depends on the functions but in some cases change a color scheme and it depends on or in

this case a name change. >> isn't it required to reincorporate under another 501-c is a separate entity. >> no, because we're not looking at the same structures and one of the issues with the formula retail use it came about the feeling of sameness so that's why it speaks to the color and signage and the names that's why those are the criteria we have so in this case they can change the signage and the colors and the name and no longer be formula retail. >> i'm not sorry could you refresher me about the basis on which you determined it was formula retail. >> they had more than 11 establishments in the u.s. and maintain the service mark and have a standard signage with the logo ross the finding it's two

or more so the service mark and the signage additional i referenced at the previous hearing it's possible the maintenance and stock and trade my trigger it but we didn't go further but my understanding they do get they might have different labels on the medicines but again, we didn't get p to that level. >> mr. sanchez i'm curious about the following. in terms of you're thinking when you made the determination that the name change made it non-formula retail and therefore you realized the permit because when you brought up the paper which was an announcement type of thing one would