bring back mr. santos that the notification he references in that photograph is what pre-work notification. that notification that was posted has nothing to do with the notifications that were posted warning people of the presence of potential lead at the premises. >> that is correct, gabe santos. that notice we put out the minute we start talking with the building owners and will start work eventually. we always throw those signs up there, something simple, to know there's more work forthcoming, more notices forthcoming, we put our phone numbers out there. we have 30 trucks around the city, we put our phone numbers on everything. we are available to anybody who has a concern or a question. one thing about mr. duffy,

what he read about the lead abatement from mr. yee, he read one notice but didn't read the second notice. he may find it before we close up here tonight, but there is a second notice and dennis yee was out there and photographed all the notices and their proper presence wherever they were supposed to be, adjacent buildings, i mean i was there myself, i might even be in a picture. actually he had me point to one, actually. so i'm sure we're going to find the other nov that will cancel out the one that he read to you tonight. >> thank you. anything further? >> we would just like you to uphold these permits. i will be seeing you next week on the rehearing and it's again with mr. bruno, but i do think at some point in time my client simply wants to effectuate the renovation of the building. thanks. >> mr. duffy.

>> commissioners, just to the gentleman who just spoke, if it's an important enough document that he thinks it's important, he should have brought it with him to this hearing. you know, if he's got a notice that's got something good on it on his behalf, he should have it on the overhead. so i just want to clear that up. i don't have it and i don't know what he's talking about, some notice, but there is a complaint here that we received for 478 union street. again, it's hard in this property, there's so many addresses on it, that to look them all up it's difficult on our web site. but there was, the latest complaint was failure of owner to repair a water heater, uninhabitable apartment unit is flooded. we got that on 2-27-15. on 3-4-15

the baker, the inspector yee from housing, it sounds like housing is out there a lot, the baker family called inspector yee with regard to a complaint marc bruno had filed on their behalf, inspector yee called mr. bruno to inform him the meeting would be canceled due to the baker family withdrawing the complaint. that's the only thing i can find with regard to open complaints to do with suspended work. there have been multiple xlaipblts -- complaints filed on the property over the years but they have all been abated. maybe a total of 3 possibly. that's the one having to do with the water heater, that's actually still open for some reason, but last mor was the last action on it. the other thing as well, the permit that was taken out

originally was for 478 union street. i wish i had been involved in the fixing of that and not the third floor counter at dbi, when someone pulls a permit under a wrong address, and contractors sometimes do that, it's always better to cancel and refund that permit and then get a new permit. if it's only an over the counter permit for kitchen and bathroom, we now have a permit on 478 union street that doesn't apply to the work being done there. we have another permit that corrects the address, which is fine, but the 748 union street the contractor said it just will expire. well, if that was my property, i don't know if i would want a permit to expire on it if someone pulled it out on the wrong address. so that permit needs to be canceled. so he needs to take care of that as well at dbi, i can advise him on that later, i already spoke to the attorney earlier about that. i wasn't here for the

last hearing but that's a clerical thing and sometimes down at dbi there's inconsistency with how do you fix that. some people like to give another permit to reflect the address change and work done there, that this is an easy permit to withdraw. it's better to do that, give the person back their money and get them to get the proper permit on the right address. but we can, i can see past that on these other permits that have been issued but we need to take care of the permit, there's no work taking place on that unit as far as i know. that was just me. >> mr. duffy, the lead abatement code and the procedures that your department has related to it, must have a set sign that is part of the notice? >> yes. >> just like planning does and your building additions do. >> that's right.

>> why would the housing inspector take a picture of a pre-ap notice? >> i'm not sure. if they go out there and there's a sign posted, i mean today's technology, the photographs, i would recommend you take a photograph of pretty much any sign on your building, a job card, whatever it is, because that's got the date on it. so the notice of posting is in the san francisco building code. it's got the size of the sign, where it needs to be, and it's also got notification to people in the building what notification they are supposed to get. i don't know why the inspector -- are you asking why he took a paragraph of that? i do that all the time when i visit. >> but it's not the official neat is. >> no no, maybe just for his benefit. >> thank you. commissioners,

the matter is submitted. >> i think much like the case that was before us two weeks ago, i believe that i'm going to vote the same way. my opinion is of the same. >> yeah, there are too many inconsistencies. >> a motion or any other discussion? >> move to deny the appeal on the basis that we don't find the fault that was alleged. >> i didn't hear what the basis was, i'm sorry, commissioner. >> on the basis that we do not find the fault that was alleged. did you hear me, victor okay, i will restate it. my motion is to deny the appeal.

>> plural >> uphold the permits on the basis that the faults alleged were not proven. >> permits, right? >> there's a motion on the floor from commissioner fung to uphold both permits on the basis that the faults alleged were not proven. on that motion to uphold, president lazarus, aye. vice president honda, aye. commissioner wilson, aye. and commissioner swig, aye. the vote is 5-0, both permits are upheld on that basis. thank you. . >> welcome back to the april 8 meeting of the san francisco board of appeals, we are

calling appeal 15-022, apell apblts versus zoning administrator. property at 1049 to fepb 51 market street, protesting the issuance to john gall and terry bogs a art of which was to comply with notice of violation, demo of office walls on the fifth floor through the first floor. and before the parties come up to speak, i want to remind everyone in the room that this is an appeal of the release of suspension and the standard of review for this appeal is error

or abuse of discretion, whether or not the zoning administrator made an error or abused his discretion when he made this decision and aplea -- applied the law in effect at the time the decision was made. so, with that stated, we can hear from the apellant. >> thank you, (inaudible) goldstein. point of order to begin with, i have some additional documents i'd like to present. i bound them and have exhibit tabs so they are easy to refer to and i have a copy for the permit holder, one for each board member and one for the record. >> are you going to refer to them in your discussion? >> yes. >> you can do that and use the overhead and then we'll decide about actually taking them.

>> i'm sorry, i didn't hear your last statement. >> we'll decide about taking them. we're not going to take them now. >> well, it's a lot easier if you have them in front of you when i am referring to them. >> we can see them on the overhead. >> okay, nobody needs them, then. okay, so first, my name is steve collier, i represent the apellant. there's a number of the tenants in the room and i'd like them all to raise their hand. there's other people wearing these stickers of people sticking the warrant tenants as well as the tenants wearing them and i'd like to have about a minute and a half of apellant melanie cooper to make a cooper. >> hi i'm naomi cooper. i've

been an afterschool teacher for 20 years and chinatown schools for 5 years. here's my situation, i'm retired now, it's impossible to find an afford pbl studio in san francisco these days and there are not too many people looking for a 66-year-old roommate. i planned to substitute teach but that plan only works if i am able ch public transportation. our former neighbors who were forced out by this land lord have had to leave the city and even the state and i would probably need to leave the bay area too if i lose my apartment. the bigger picture is i worry about the future of san francisco. we're in danger of losing our working class and middle class. we need to keep creative spirits like my neighbors, brenda and the dancer, melissa, both a book keeper and fashion designer, alajandra, child care worker and stained glass artist. there are so many others like

them, i think it's great san francisco is attracting wealth and investment but you cannot have a workable town that's only made up of rich people. this magical city is becoming too exclusive. so the tenants here need your help and we have much to offer, too. we're the kind of people who keep san francisco diverse and vibrant. we're also the kind of people who keep the city running, keep us, please, please revoke this permit. >> thank you. i'll begin my presentation. this case concerns the loss of 77 units of rent controlled housing on floors 1 through 5 at 1049 market street. i wanted to show you plans submitted by the permit holder back in 2011 on the overhead. this is the permit history presented in 2011 and behind it

are four pages of plans. they are all identical, one for each floor. as you can see the plans indicate two means of egress, which is important for fire code purposes, and 16 units on a floor. so that's a total of 64 units in floors 2 through 5, plus there's the first floor which has ground floor retail plus the mez zanine which also has more units. the permit holder has known since 1995 --. >> i'm sorry, we're having problems with our screens. if we're going to have a lot of reference to --. >> it would be easier to have them in front of you but i'm happy to do it this way. >> thank you, victor.

>> so the other thing is that 66 notices of termination of tenancy were served on tenants on floors 1 through 5, including the mezzanine the permit holder since 1995 has known the units were used residentially. mr. bogart's declaration, no. 22, indicates in paragraphs 4 and paragraph 5 that we eventually discovered, unbeknowns to management, some commercial renters had begun living in their units. in late 1995 we decided to convert the office units to live work law.

so this has been residential housing since at least 1995. we have a craig's list ad here on the screen that was, as you see, it says san francisco housing, apartment housing. this is for miss bracero's unit --. >> would you continue to speak into the mic, please. >> it says loft takes a queen size mattress, bathrooms are shared and cleaned daily, laundry in building. clearly this is for residence occupancy and this is from 2011. furthermore, the units have kitchenettes, as advertised, i just wanted to show you a couple of photos of kitchenettes, that's one of them in one of the units and a

second one. this is how the units are rented with these kitchenettes under the loft. i want to rebut the claim that the unit is not compliant with fire code. california fire code section 1021 requires two exits per story, not per unit, and as noticed on the plans there are two exits per story. the apartment of a rescue window in r2 occupancy is exempted because the building is fully sprinklered. 36 units in the building also have windows so those units don't even -- they do have exit, rescue windows. and the permit holder has admitted this. as noted in our brief, they did it in the building commission that the building is code compliant and (inaudible) 24 another

overhead mr. gall admits in 2010 and 2011 that he had conversations with don fields are that fire code is met due to exits, sprinklers, et cetera and walls being one hour rated. don answered my question regarding stairwells. also wanted to quickly show you that it is sprinklered in all the units. this is a photo of sprinklers in the common area and then each unit also is separately sprinkled, a couple pictures of sprinklers in various units. so essentially the zoning

administrator did abuse his discretion because he didn't address the prop m requirements in his release letter and i'll address that more in my rebuttal. would you want to take the exhibit? >> thank you. mr. zack >> thank you very much, i'm andrew zacks, honorable members of the board. 1049 market street was constructed as a commercial building in 1907 and has been a commercial office building since that date. it's not a residential building. in the mid-1990's the prior owner of the property permitted residential occupancies to occur at this property. however, in 2007 the city and county of san francisco issued a notice of violation against those occupancies and demanded that they be addressed. from 2007 until the property was

sold in 2010 to the new owner, the prior owner attempted to bring the building into compliance to allow for the residence occupancies and that was unsuccessful. after the current owner purchased the property in 2010, the owner continued its efforts to bring the property into compliance to allow for residential occupancy and residential 10 answers at the property. mr. buscovich, hots here represented both those owners and will talk about his personal efforts to bring the property into compliance, all without successful. the current permit was issued on august 2, 2013, to address these 5 year, 6-year-old violations at the property at the requirement of the city and the department of building inspection. neither the city or permit holder have addressed any defect. the presence of tenants living in a commercial office building presents a

serious life safety risk. this is not just an issue of light and air and a lack of windows, it is a state fire code violation because there's insufficient rescue access and egress for fire service. many of the units do not have windows, as counsel just stated. i will refer you to the jones declaration that's before you as part of our brief to establish there is in fact a serious life safety rifrk -- risk at the property. i'm guessing that we will soon here from the zoning administrator about a new ordinance that was enacted last month. that ordinance cannot have any impact on this particular permit because this permit was issued nearly a year and a half before that ordinance was enacted. it's well established in california law that property owners have vested rights to continue uses that exist at the time of a change in zoning. in this

case, the particular zoning ordinance that we are dealing with attempts to declare that a use that's been in existence, the commercial office use of this building, for more than a hundred years in this case, that that use should be magically declared to be illegal as a result of the passage of a ordinance. as the director described that law is not the appropriate law for you to consider because this particular action in this case was taken prior to the effective date of that law so that is not the applicable law for you to be considering. a principle permitted use, which is what the commercial office space is, cannot be abandoned. the zoning administrator recognized that in releasing the suspension order in this case. the notion that a principle permitted use can be abandoned is completely unprecedented in our case law and completely unprecedented under any version of land use principles. the main points that i want to make here today is that my

client, without any income from this property since late 2013. california law absolutely forbids a property owner to receive rental income for illegal residential occupancies. there has been no rent collected from any of these tenants for nearly 18 months and there will not be rent collected as long as these units do not have certificates of occupancy. the case i refer you to is grusen versus henry, which makes it very clear that the owner is not permitted to collect rent. the remedy for the owner in this circumstance is to do exactly what it did, attempted to legalize these units, attempted in good faith, and mr. buskovich will talk about this, and was unsuccessful. the city commanded it to do exactly what it has now do,

which is obtain a permit and remove the illegal residential occupancies which is required by law. going to turn this over to mr. buskovickh so he has sufficient time and i will also save time for my rebuttal. >> good evening, commissioners, my name is pat buscovich, in 2008 i was hired by the previous owner, rocky lane, to legalize this building as live/work. i spent two years, tens of thousands of dollars preparing plans, pulling records, everything about this building, meeting with the city both on the architectural and structural. the reason i was hired because i had successfully done a live-work down the block for the then same owner, was able to do it, it was very challenging. i was in front of this board as part of the procedure to get it legal and because of my success there, i was hired here. after two years i failed. i couldn't do it. and the reason

is this building is fundamentally not set up for residential use. the building i was able to do was a corner building with windows on both sides because it had light wells in the corner. this building doesn't have access to windows. so that was the problem. there were a number of code issues, one of them was a local amendment is that i call it the (inaudible) amendment that was a major challenge, i was in front of the commission twice trying to change the code, unsuccessfully. there are problems with egress windows that are basic code. the end result was, the design was to cut holes in the floor coming all the way down through the roof to provide light courts. it was getting beyond insane because basically i was tearing the building apart to be able to provide this natural light and egress requirement and soon i was advising the client that basically i was taking their building apart,

the cost to do the work was approaching the value of the building and to do this work i'd have to remove occupancies on the 6th floor. and it was also dramatically affecting the performance of the building because the work triggered a seismic. the city has fixed one of the challenges but there's still a fundamental challenge. the state building code and the state's fire code cannot be lifted by the city of san francisco. thank you. >> i have a question, mr. buscovich. when did you start to perform the work for this property again? >> 2008. >> in 2008. so you made the owners aware that it was not habitable at that time? >> i told them i could not legalize this building, yeah. couldn't figure out a way to legalize it, probably around 2010. >> so they knew at that time that they had an illegal usage building? >> i would assume so. >> okay.

>> mr. sanchez. >> thank you, scott sanchez, planning department. the appeal before you is an appeal of a release of suspension for the subject prompt. i'm here to ask you to grant the appeal and maintain the suspension of the permit. briefly, there is a long history, i will only touch on a portion of that tonight, the permit that is at question was issued in august of 2013, was not routed to the planning department for review, had benefit to analyze the project appropriately. concerns were raised to our department so we suspended this permit in october of 2013. that decision was appealed to this board. however, the apellant, the permit holder, withdrew their appeal. therefore that decision became final. so the suspension remains in effect to this date. there were interim controls that have been adopted by the

board of supervisors over the past year from the end of 2013 to the end of 2014. also when the permit holder released or withdrew their appeal, they indicated some willingness to work with the city to look at alternatives to legalizing the building. not aware of any constructive discussions that were had during the past year to result in legalization, certainly no permits, no proposal was moved forward to legalize the residential uses of the building. late last year we received a communication from the attorney for the property owner indicating they would like us to take a final action on the suspended permit, it had been suspended for a little bit more than a year at that point and they wanted some action to be taken. we did our best to complete review and determined that certainly at that time that the planning code did not prohibit what had been authorized in the permit and so on february 2nd of this year i

released the suspension. since that time, new interim controls have been adopted which i think specifically address this permit and in most pertinent part, and this is resolution 61-15 and it's included in the apellant's brief, but the relevant part that i would like to read to you, that during the pendancy of these independent controls and the geographickary covered by these controls, any commercial use that has been converted in whole or in part to residential use, such as this property here, without benefit of a permit shall be deemed abandoned. any permit subject to the posted notice and 15 day hold requirements above -- and this is a permit that meets those characteristics that are defined in the resolution -- any of these permits to reestablish any commercial use shall not be issued or reinstated or if already issued, shall not remain effective unless the project sponsor obtains a conditional

use authorization from the planning commission. these interim controls do not prohibit them moving forward either to seek legalization of the residential uses or to convert back to the commercial use. they simply state that they need to go through the conditional use process. these are the laws that are now in effect. we believe these are the laws that need to be applied tho this project and to the permit. the permit has not been reinstated, these interim controls are in effect and therefore i'm asking you to grant the appeal to maintain the suspension and we can work with the department of building inspection to take appropriate action which i believe would include revocation of the permits, but we need to have this come back, go through the appropriate process under the interim controls for the interim use authorization. those are the issues i wanted to race. thank you. >> mr. san