sections of code that they could use and i'm available for any questions. >> so based on the lack of a process going through, building inspections has no opinion or does it have an opinion as to whether this is a dangerous building or not? >> the building was converted without permits from office to residential. we know that. my discussions with staff today, as a matter of fact i spoke to ron allen, chief electricitial inspector, who was on a task force visit there, his comments to me was i expected a lot worse. there are some issues. it's whether you call it dangerous or not, i don't know. but his comments to me was that it would, there are -- there is the possibility that the building could be brought up to current electrical code. mr. ma told me the same. there

are dangerous buildings but they didn't say it was a dangerous building. but the code allows -- there are exceptions for the building under live-work, under the provisions of live-work. we used it when there was lofts built in the city, it has been used before. there are some differences in a new building versus an existing building. in answer to your question, is it a dangerous building, i can't say that. and i personally have never been to the building. >> thank you. so we will take our rebuttal then starting with the apell ant, mr. collieer. >> thank you, i wanted to address commissioner swig's comment. i do have an email sent to mr. gall, the permit holder, i will put on the overhead. plumbing inspection division said i found no

violations, this was in october of 2013. building inspection said elevator lobby doors need to be upgraded, there was a lack of required heat. but basically they all felt that it was just maintenance issues in many cases. for example, electrical inspection says most of the problems with these buildings appear to be maintenance related. so i don't think they are willing to waive the requirement of light and air, which is what mr. buscovich said was the big problem, having to he to ex this building is not a fire trap because mr. gall said that himself in front of the building inspection commission, it's in our brief.

i fully support what zoning administrator sanchez said about because the law is currently is at, this permit cannot be issued, you should not abuse it. however if you feel you should find an abuse of discretion in his release letter, i will give you a way to do that. originally it said to investigate compliance with prop m, specifically planning code section 320k as to whether the office use had lapsed. mr. sanchez's letter did not address that, it didn't address any compliance with prop k, it simply ignored the issue. and that is a classic example of an abuse of discretion. when an abuse is presented to the decider and the decider simply ignores it, they are abusing their discretion by not investigating that, especially when it was the basis for the initial request so this matter should be referred back to mr. sanchez if you want to find an

abuse of discretion to have him determine whether prop m applies. of course at that point he will have to apply the interim controls and find they do apply and suspend the issuance of the permit. if he were to do that one of us would appeal and it would be right before you again. i think it's important you keep the permit suspended so the interim controls can be maintained. to show you that prop m compliance is an issue, i just wanted to show the assessor's property report that's here on the screen and it indicates a total building area of 56,800 square feet. okay? the prop m threshold is 25,000 square feet. clearly 5 floors are being removed so that's more than half the building, prop m applies.

thank you. >> mr. zack >> what counsel just described to you is absolutely incorrect. the release of suspension order correctly addresses the issue. it determined the pre-existing office space was legally established and that office is permitted as of right in this c3g zoning district. it's neither a nonconforming use nor a conditional use. if it's already an office there's obviously no prop m issue, prop m is for new office use or reestablishment of office use. there is not a grounds to reverse this decision based on an abuse of discretion based on this last-minute issue that is not in the briefs and we haven't had a chance to address. this permit is vested, the owner relied on it and relied on it to the tune of more than $300,000 in cash paid to these tenants as part of his efforts

to comply with the law and remove these residential uses. in addition he relied on it in serving these notices that are allowed by our rent control ordinance and required by california law, these notices to remove the residential occupancies. because of the suspension being issued he's been sued by more than 40 of these tenants. mr. collier is representing more than 20 of these of these tenants seeking moneyary damages from him as a result of the city's action, none of which he did, which is completely without merit and completely a result of the abuse of the suspension of this permit that was not authorized under the law under any version of events as the zoning administrator has acknowledged. the board of supervisors cannot change the law and remove the rights of an owner where rights have vested under a permit and in this case based upon the evidence before you in

the declarations and the brief we have submitted, these rights have vested based upon payment of money to the tenants and reliance to the permit and the law attach toad my brief establishes that my client relied in good faith on this permit and faces loss from 40 tenants as a result of nothing that that owner did. mr. buscovich, i would like him to please cite the specific fire code provisions that are applicable in this case. i want to correct the record, my client bault the property in 2012, not 2010, i misspoke in that regard. last 30 seconds to mr. buscovich. >> my advice to the building was to the previous owner. i don't know what that owner said to the current owner. it is a hazardous building, specifically egress. section 1029 of the california building

code, which the city does not have the authority to amend or change, requires egress requirements. the entire chapter 10 of the building code requires it and they are enforced by the fire department, in addition to the building department. the building department is saying they can change the code, they have to talk to the fire department about that and no representative of the fire department is here. thank you. >> mr. buscovich? no, no, councilor. >> you said your client brought the building in 2012? >> correct. >> at any time from the time he purchased the building was there any new tenants who rented a live-work space? >> i don't know the answer to that but i'll be happy to try to get you the answer when we take a break. >> excuse me. >> i don't know the toopbs that but i'll be happy to get the answer to that question for

you. >> is your client in the room? >> my client is here, yes. >> thank you, any other questions i can address? >> that will be first. >> go ahead with mr. sanchez. >> thank you, scott sanchez, planning department. just to reiterate our position again, we believe the interim controls apply to the subject permit and we respectfully request that the board of appeals grant the appeal and grant the suspension remain in place. perhaps i am overstating our action, this is a request to the department of building inspection, it's actually the department of building inspection that would be taking an action to reinstate the permit and so they perhaps could choose to ignore our request that's contained in the letter that's on appeal to you and perhaps

they may get advice from their legal counsel that the interim controls are in effect but we believe, just for clarity for everyone, that this release of suspension request that i have issued should be denied, that the suspension should remain in effect to prevent any confusion about that. in regards to the vested rights argument, these arguments were raised extensively in the permit holder's first appeal on this item to this board last year. they briefed on it, we briefed in response, the city attorney's office submitted an excellent brief that i think addressed all the points and stated very clearly there were no vested rights to be had with this permit. the apellant maybe agreeing with that withdraw their request so it became final. again, available for any

questions. thank you. >> mr. sanchez, i'm looking at the language in these interim controls and i'm trying to parse through it because there's a reference to reestablishing any commercial use. i mean, in your opinion was the commercial use ever abandoned? >> under the provisions of the interim controls it states that any use which is commercial use that's converted to a residential use shall be deemed to be abandoned. >> right. >> so under the interim controls the previous commercial use would be deemed to be abandoned under the power of the interim controls. >> was the building totally converted to live-work? >> it's my understanding that essentially, yes. >> there's one commercial sfais on the ground floor. >> the ground 34 has retained some but floors 2 through 5 have been converted without benefit of permit, floor 6 was

converted to live-work with a permit in 91. perhaps that gives an idea when the other conversions took place, they may have gotten the permit to convert the top floor, converted the entire building and 39 therein we have the problem. >> is counsel right that commercial space can never be abandoned under the law. >> in terms of his legal argument i can't say that, but abandonment for principle uses is not -- for non-conforming uses it gives very specific timelines but it doesn't give such clear information or arguments for are, such clear guidance in terms of when

something may be abandoned when uses are principallily permitted such is as the case here. >> the phrase live-work, as it implies that work is being done and therefore that's a commercial use. >> live-work does have with it both a residential component and a commercial component and so they blend together. >> so indeed if there is live-work going on, then the commercial use of that unit has not been abandoned. i would need a legal opinion, i'm not a lawyer, but live-work, i occupy in my business a live-work condominium. it's implicit that i live there and i work there or that commercial activity will occur. the same thing in a live-work rental situation, that somebody will live there and somebody will work there. the word work it is implicit that it is a

commercial use. so that's where i go to war with myself on this. is it a residential building or a commercial building or is it both and therefore has the commercial use been abandoned? that's a question. >> that is an excellent question. under the planning code and under planning code section 317 which we had talked about in an earlier case, it not only applies to demolition of buildings but also changes of use, merger of unit , and for the provisions of the planning code we look at live-work as a residential use. so if you wanted to remove a live-work unit or merge two live-work unit you are subject to the requirements of 317 because essentially that is removing a residential use .d in my reading of the interim controls this would be even if they are live-work would be residential uses for the purposes of the planning code and for the interim controls. >> thank you.

>> we have an answer to my question? >> commissioner wilson, i spoke to my client. my client used a property manager beginning the time he purchased the property in 20012 and to his knowledge the only rentals in the building after 2012 were commercial and there were no residential uses to his knowledge. >> no i'm sorry. i believe that inspector duffy has some additional comments to make, commissioners. >> commissioners, i just want it repeat that the dbi has been asking for a formal pre-application meeting so that they can apply for a path to legalize as live-work. there are exceptions in the code that will allow this. i have an information sheet here with addresses, section 1029.1 which mr. buscovich was referring to

which seems to allow for the lack of egress windows in parts of the building. i just want to repeat there are, there may be code issues there, but there's an avenue for them to pursue that. >> thank you. >> i got a question. is there anyone in the public, in our audience, that has rented after 2012? if so, please raise their hand. can you please step forward to the podium, please? so when did you sign a lease with the current land owner? >> i don't have that date. i didn't come here --. >> so was it in 20012. >> it was about two or three years ago. >> about? this is very specific. i'm asking specifically if anyone here has

rented after the ownership has changed. >> well --. >> it was built --. >> excuse me, if we have a question we will ask you to come forward. >> it's a different building. next door, same landlord. >> since i allowed counsel to. >> a very simple point. it's exhibit 14 which we presented when we filed, it's their lawsuit against the 10 ands to collect the rent they say they can't collect and it lists everyone who moved in and it lists a number of people who moved in in 2012. it lists christopher figuroa, brendan barthal, it's all there, may 1, 2012, john escobedo >> may i respond to that, please? >> would you please come

forward? >> my client purchased the property in december of 2012. >> thank you. >> other questions? >> commissioners, the matter is submitted. >> oh, boy, fun, fun. . >> the question is whether you think the interim controls apply or not. >> not quite what that argument -- i think, you know, as in all appeals a lot of things are thrown out and it's our job to wade through it and see exactly what is pertinent and for me then there's two things here. one is that i'm in total agreement with the za that a principlely permitted use, however it was illegally converted or not, still

remains. and i think that's a tenet that has been around forever. and therefore i'm not challenging that particular element of it. and all the other arguments made by both sides on a number of things, there's only one which is alluded to that resonates with me and that's because this is only dealing with the za's release of suspension. i think that the question of whether it was legally permitted permit is the issue that has been raised in my mind. a permit for this building was issued because it was put down that the scope of work was for the first 5 floors and not the

6th floor, which had legally permitted live-work. however, the designation when they put in there did not indicate a change of use. the way they wrote it was that the existing designation -- use for the building was a combination of commercial, live-work, et cetera. then they said the new use was going to be the same and that's clearly not the case. because the residential component disappears. it becomes purely commercial. so in my mind, then, it's my opinion that this

permit is defective and therefore i would, my position would be that the grantee appeal and --. >> on the grounds that --. >> that the permit is defective. >> after hearing everyone's statements and going through the very difficult briefs, it was hard to sort out and i appreciate my fellow commissioners' way of breaking that down. i, too, will agree with his opinion. >> may i add one last point to that? sometimes i didn't quite

finish my own thinking. the permit then is defective because if the change in use had been noted there then it would have triggered a lot more review by planning and it would also, you know, have allowed for then due process to occur. >> mr. sanchez, ask you a question? your analysis was on the basis that it had been and was going to continue to be commercial. is that correct? >> yes. where we found that there was no abandonment of the use, the last legal use had been commercial, the office space, and they were going back to that last legal use. >> do we have the actual language of the permit? >> i believe the permit is in one of the briefs. exhibit --.

>> the description of the existing legal use of the property. >> can you point that out in our brief? >> exhibit e, the declaration of ryan paterson. and it describes the present legal use and the proposed use. >> i wouldn't mind your reading it out loud. i can't read this. >> present use, office, retail live-work. proposed use, office, retail, live-work and it describes the 6 existing dwelling units live-work spaces that are legal on the top floor. completely accurate to all respects, commissioner. >> i thought your permit was not related to the 6th floor. you have already stated that. >> excuse me? >> you have stated

consistently in the brief and the oral testimony today that the 6th floor, which had been legally permitted units, was not part of this permit. >> commissioner fung, when you describe a permit, use of a permit on a property, you need to describe the legal use of the entire property. it would have been inappropriate and inaccurate to not list the fact there were legal residential uses there and this was in a totally appropriate way and quite frankly the first i ever heard that, that's not something the zoning administrator relied on. this is something we have not had any chance to respond to and if that's going to be the basis to the board's position we request the opportunity to respond to it because it's not supported by the practice of the code and not supported by the practice of filing permits. >> okay, thank you. >> further discussion or is there going to be a motion? >> well, there's going to be a

lawsuit no matter what. >> i think that i appreciate, commissioner fung, that you added the last portion of your finding. i agree with your finding but the last portion where you mention the due process piece, if we move and support the zoning administrator's appeal then that raises the potential of due process. it raises the potential of sorting out what everybody admits was an illegal act in the first place, it allows the opportunity of sorting out the commercial use versus the noncommercial use, and if we don't go in that direction then this will never sort out and it will always be

a blemish and contaminated building in the legal sense and never clear exactly what it is. and so i would support your position to enable due process, aside from the fact that i don't want to throw 70 people out on the street. but this allows the due process which i think is critically important. >> i'm going to move to grant the appeal to maintain the suspension on the basis that i feel there are defects in the issued permit. >> the standard of review is error, abuse of discretion. >> and therefore the zoning

administrator erred. >> in failing to recognize that the permit is defective? >> that's correct. >> mr. santos. >> i'll repeat it again. there's a motion on the floor from commissioner fung to overrule the zoning administrator's order on the basis that the zoning administrator erred in failing to recognize that the subject permit is defective. >> that's correct. >> on that motion to overrule the zoning administrator, president lazarus, no. and vice president honda, aye. commissioner wilson? >> struggling with the motion.

sorry, with you repeat the language again? >> yes, to overrule the zoning administrator's order on the basis that the zoning administrator erred in failing to recognize that the subject permit is defective. >> i'm just having a little trouble with that language. i guess i'd be aye. >> aye from commissioner wilson. commissioner swig, aye. the vote is 4-1, the zoning administrator is overruled on that basis. thank you. >> no further business,

president lazarus. >> we are adjourned. (meeting adjourned)..

>> proceedings. commission, if you care to, do state your name for the record. i'd like to take roll at this time commissioner president fong commissioner wu commissioner antonini commissioner hillis commissioner moore and commissioner johnson and commissioner richards are present commissioners first on your agenda is consideration for items proposed for continuance item number one conditional use authorization is property until that april that 23rd