done to increase non-compliance and this is what's happening here by permitting a horizontal rear addition they're increasing the non-code compliance and with the way that chris hall had in her [inaudible] -- >> excuse me but your time is up. >> alright, thank you. i hope that you don't go for [inaudible]. >> mr. michelle you have three minutes. >> hi i'm jacob michelle. regarding the permitting process, it took quite a long time, i thought, it took about two years and we did try to

engage ms. amini at every step along the way. there were some changes to the plans that were made because requirements after the planning department reviewed it, they made suggestions and we adopted those. i think the key point is that no part of it extends past the rear setback, and we did everything we can to be cognizant of that and minimize the impact in that part of the yard. that's all i have to say. >> okay, thank you. mr. sanchez? >> thank you, scott sanchez, planning department, on the rh1d district it's not a lot coverage rimer, there is setback requirements, so it's not -- you can have a building that may need code requirements that exceeds maybe 100% lot

ko*rj, we've had projects like this in the past, that's because over time t zoning control can change and you have non-complying buildings which is this is a non-complying building and a non-complying structure can be expand but it cannot create a new discrepancy it cannot encroach further into the rear yard and what they're proposing here is an expansion to a legally non-complying building that does not create an additional discrepancy therefore it's code compliant, i'm available for any questions thank you. >> mr. sanchez, do you see any neighborhood harm being created by this expansion? do you see any prevention of any neighbors, light, air, view, do you see anything that makes it an albatross in

general that is inconsistent with the sbekt of the neighborhood? >> no. >> thank you. >> anything mr. duffy? okay, so commissioners, the matter is submitted. >> actually the horizontal addition of ms. amini is objecting to is the farthest it can be away from her house. the reason i asked the question on what would be considered a rear yard because if the permit holder had taken the opposite property line at the rear yard where mobster of his building would have been non-conform he would have been able to add significantly more to his building at grade in a horizontal fashion but it would have been much closer to ms.

amini's house and i believe that her -- she went through very detailed analysis but some of her assumptions are incorrect in terms of where that coverage is. at this point i see no reason not to allow the permit to proceed. >> i concur. once i drive by the site every day. >> any other comments? >> no. >> a motion? >> it's 10:00, what do you want? >> move to deny the appeal and to allow the permit to be issued in that it is code compliant. >> thank you, commissioner. >> there is a motion on the floor from commissioner fung to uphold this permit on the basis

it is code compliant. on that motion to uphold, president lazarus? >> aye. >> vice-president honda? >> aye. >> commissioner wilson? >> aye. >> commissioner swig? >> aye. . er thank you, the vote is 5-0, the permit is upheld on that basis. >> thank you. moving on to the next and last item, item 11, appeal number 15-054, augustine fallay versus zoning administrator, 3378 sacramento street, protesting the issuance on march 17, 2015 of a request for revocation asking that the department of building inspection revoke bpa number 2015/01/02/4850 because it was proved over the count ir in error by the planning department.

mr. fallay? >> good evening, madam chairman good evening, members of the board, my name is gus fallay. this is dr. yen kalika, he's an orthodontist and wants to move his office to sacramento street. first you need to know who this guy is he's an american trained o*rt don'tfisting and has worked very hard, he's been revered by others in his field and obviously he has a lot of praise but it is not so much what his qualifications is that is the matter is what he does with it. i sent him my brief stories about him through his [inaudible] life.

i sent in my brief through his sfiel more life foundation, through that foundation, he has kids whose parents cannot afford to work on their teeth he has also adults who cannot afford the fee, he has been praised, not only by his -- not just by his local community, as you can see, apart from the letter you have in my brief this is captain cheryl farino who said she's pleased to work with someone like him and she's talking about how many children he's treated free of charge and they're bring k more children to him, it's not just being praised by this report by the cal foreign yoo assembly legislative assembly and basically he was given a

certificate of recognition by [inaudible] but beyond that what this case is about really, it's quite straight forward. dr. kalika wanted to move his office from gary street to sacramento street and he was looking for a building that can allow him to have his service. he called his realtor who will be here to talk about that. basically they eventually found a building this is only part of 2014. once they got this build they contacted the building department to make sure they can have a medical service on it. on several occasions, i asked the realtor, they contacted not just one not just two, they have letters to that effect, so they believed at the time they bought the building that they could use it for medical service, that is what they believed at that time, so when they bought it, they came back to the planning department and asked for a permit in order to

reconfigure the interior of the building so that he can bring his medical service there iet esalready been gutted, the contractor is here and they're going to testify to that fact. he's wasted a lot of money he didn't sign the lease on gary, he has already abandoned it. this is the only building he has now for his practice and he has put in a lot of money over 60 thousand dollars to buy materials for this particular building. now, basically, the planning department is saying that -- and this is where the code comes in that the reason why they revoked the permit was because it was an art gallery and some of the neighbors went around telling everybody that it was an art gallery, but it wasn't. where there was an art gallery existing in this place there was never a legally permitted art gallery in this building and there has never been, and

i'm sure the zoning administrator will agree with me on that, the last permitted use was an office and he was told he can use this place once it's an office on the ground floor to put his medical service, he just took it and went in. dr. kalika from his record is not a kind of person to do things through the back dao, he has a name and reputation he wants to protect, he was shocked for the last five months, he's been using this building as a management building for his other offices from sacramento to san francisco. now, when he heard he was shocked because he didn't sign his lease, he has bought materials for this new area and they are inside the area, it is gutted. we are here because of rumor that is are not true, those

false rumors have given birth to this meeting today because everybody was told that the place was an art gallery, it wasn't, and therefore it could -- they were told that dr. kalika could not put his medical service there and that was not true either. what is true in area is that the code is very clear that you cannot have a medical service as an original use in any building except if you are replacing an office, a professional office and service and on the ground floor. now, no medical office is accepted or allowed in this building or any other building in this neighborhood on the second, third or fourth floors. it is not allowed at all, it is illegal. you are allowed on the ground floor and below, dr. kalika bought a ground floor he bought it and below that and

tried to put his office and he was stopped. the grief we have here from the neighborhood, we have strict zoning laws that you try to keep, if you have strict zoning laws you want to keep, dr. gar n*et who's leading this particular effort has two offices on the second and third floor on the buildings she lives in, why [inaudible] they have singled him out for whatever reason, i don't know, but he will be with your help the only second orthodontist in this neighborhood and what we have to say and what i would like you to think please, look at him, what this would do to the neighborhood, plus the profit, what harm would it do to have mr. kalika in this office? absolutely nothing, he is to bring good, so uphold this for him to continue to do his renovation and bring his service to this neighborhood.

thank you very much. >> sorry your time ran out. >> you can speak on rebuttal your time is up. >> okay. >> mr. sanchez? >> thank you, scott sanchez, planning department, the subject property is located within the sacramento neighborhood, since the inception of the commercial district controls in the late 1980's, medical offices have not been allowed within this zoning district. beginning in 2013, there was an amendment by supervisor farrell to allow for limited new medical office uses and that will be only allowed when the existing use was a legal business and professional service use but that is the only relatively recent change. the subject property was last occupied by an art gallery and

it was occupied by that art gallery for some time, probably 10 15 years or so. the appellant has argued that was not a legal use, that's the last legal use of office, however no evidence has been provided to support there was ever at any point in time a legal office use, even if there was a legal office use, any such office use would have been abandoned by the fact it's been occupied by the art gallery, it is a retail use that is permitted within the zoning district medical use as stated is not allowed, the business and professional service use which the appellant seems to have created five months ago to justify the conversion to the medical office use requires a conditional use, and so we revoke the subject permit after it was brought to our attention that maybe the facts weren't quite as clear as they should have been on the permit when the permit holder put as the present legal use health care management office and proposed use dental office so i think

staff at the counter probably subverted it going from business professional service to medical office and seeing that that was allowed and limited instance ins the sacramento and cd aproved it but when it was brought to our attention that it wasn't that, the last use on record was an art gallery and i think even the appellant will not dispute the fact that any office use had there even been one has been abandoned. it seems to be their best argument is that a business and professional service has been established by the appellant five mothers ago but there's no permit to do that, there's not a building permit, it would require a conditional use authorization in order to ob pain a professional and business use at this location so with those facts i thought it was pretty clear cut to have revocation of this permit, i

think what was stated on the permit was somewhat inaccurate and that led to the revocation. i'm surprised there's four minutes left, i guess it was more straight forward than i was thinking. i'm available for questions. >> how did this come to your attention? >> this came from the district supervisor's office when they proposed this legislation a couple of years ago, they wanted to make sure they had limited applications because of the concern about proliferation of medical services and the proximity that cpmc, they wanted to maintain a balance, it's a restrictive district, so they're very concerned about that and when they heard about this conversion and how it seemed to be done out of the offices, the co-change they implemented i think that raised concerns we invest painted and found this was not properly issued. >> do you have a documented

permit history of what was there prior? >> i would say the permit history is not entirely clear i agree with the appellant to that extent but i don't have any evidence that there was a legal office use. i know that's something the appellant has argued and i can see those material ins their brief. >> so you say it was an art gallery for over ten years. >> from using google street view, it had been there last year and it was going back to 2004 or so, going back quite some time to the earliest 2008 or 2004, whatever the earliest google street images were and perhaps some of the local merchants can speak to that, three years is required as an abandonment of use. thank you. >> other questions? >> i think that argument

similar to the one that you made related to market street where the understood lying use was undisputed as commercial in that case and even though it had exceeded the three year threshold, how is this different then? >> in this case, what they are arguing is the understood lying use which they just said office, not exactly what kind of office, but presume mri either medical office or business and professional service, business and professional service is a conditional use which is abandoned after three years and a medical office use is a nonconforming use which is abandoned after three years n the case of the market street, the underlying use was office, general office, it's a completely different zoning district and the underlying use is principally permitted.

>> okay but in this instance then, i would like to see what the permit history was. >> okay. alright. >> mr. sanchez, my recollection having had my hair cut there at the salon which was in place for many years is that -- and that was -- i won't say the word blighted but it was abandoned space and not used for anything at all whatsoever except an unused basement until the art gallery went in there, it was nothing, so you may find that in fact, and i agree with commissioner fung, that we should get a little history on this, but it may have been absolutely nothing except for an unused basement in that building. >> that may be the case, i

reviewed the history [inaudible] and it was a mix of use it looks like there was a boutique there for some point for a brief period of time in the 90's, there were individual names that appeared to maybe have been residential at some point there was a permit that received a completion in the early 90's, that's a retail, it was a sprinkler permit, so i think the permit history is a bit all over the place but -- >> it's the northeast corner at walnut and sacramento? >> yes. thank you. >> that's funny i got -- >> is there public comment on this item? those who would like to speak can line up on that far wall there that would be great wo*fr wants to start please step forward. would you like to start? someone needs to step forward and start. >> step forward and speak.

>> wo*fr wishes to go first. >> my name is [inaudible] and i'm a real estate broker with an owner of [inaudible] real estate. when my compliant dr. -- >> i'm sorry you are the paid agent of the -- >> dr. kalika. >> you can speak during his rebuttal time, not public testimony. >> good evening, my name is kathrin, you'll see my f in the briefs my name was mentioned in some of these e-mails and i want today provide a little background. this case is not about personalities at all for us, it's about the facts and neighborhood character and preserve hating and the seoulbacker zoning controls in place. when i first heard about this, it was brought to my attention

in late 2013, early 2014 when i received a call from paul noter he was worried the billing was going to be purchased and he was going to be kicked out at the art gallery space he was told that our legislation that mr. sanchez just described was going to allow that to happen. i panicked slightly because we went through a pain staking process with the neighborhood group fan, [inaudible] and the merchant group to make sure the change we were making to the neighborhood nerbacker commercial controls did not affect retail space or -- did not allow for something like this to happen for a retail use to be kicked out like this. after that, i made contact with ann marie rodgers at the planning department, they assured us our legislation would not allow this to happen,

so basically what happened next was -- do you want me to explain it more? okay, i also called the real estate agent at that time, i think he name was mr. cauchi, explained to him our legislation in place would not allow this to happen, after confirm hating with the planning department, so it was our understanding they knew going in that that wasn't a use that was going to be permitted based on my follow-up with the planning department and two years of trying to get a simple piece of legislation passed at the planning commission to allow for a slight change to the zoning control, that's the history i vaoem available for questions, this is not ability personalities, iet's about to preserve neighborhood character and the zoning that are in place thank you. >> next speaker. >> my name is charlie ferguson

i'm on the board of direct toser i've lived there for 35 years i live two blocks away from the budget property and i estimate that in my 25 years of living there i passed that property about 10 thousand times either by car or on foot. i can straighten out a few facts there was a gallery there it was there for somewhere between 7 and 10 years i don't know exactly, it was a real gallery, you could go in and buy things there and before that, the space was either occupied leased or not occupied at all by those that really were not in a commercial retail business. my purpose in coming here today is simply to say that i worked on this amendment with the supervisor and it is very important that people not do what has been done here.

we have enough doctors and dentists in the neighborhood right now, some of them are grandfather in that's why you have people on the second floors and even on the first floors on the neighborhood commercial buildings, they're grandfather in, for somebody to come in and declare he has a fantasy office for one or two days and then file as permit to open up a dental office in the same space is a trick that we don't want to tolerate. we want retail in that space period, end of story and that's what the neighborhood commercial district is all about. thank you. >> next speaker, please. >> bill [inaudible] president of presidio association of neighbors, i'll echo what charlie said, we're committed to make sure this is a healthy retail district and there was a retail location there whether permitted or not, i couldn't

say, i'm not an expert at that, as charlie indicated, there was an active retail location there that got sur planted by mr. kalika, and it should be retail, that's why we are opposing the permit. >> thank you, next speaker, please. .sing good evening, my name is tries -- tracy i am a resident and business owner about a half block away from dr. kalika's new site, so i also have been president of the merchant association over the past two and a half years trying to pull together all our merchant and is services and trying to improve our business district as we've gone through some tough time ins the past few lazarus

and the board of appeal, my name is evan gar n*et, i'm an orthodontist at laurel street on the first floor my wife and i are concerned about the written appeals documentation and broadcasts to damage might have wife's professional reputation without [inaudible] to defend herself, she submitted to the board in an

e-mail this morning and i would like to publicly read this letter for the record, dear board of appeals, i would like to clear the record that dr. kalika has written about ne e me he's singled him out to accuse me of trickery recklessness, lobbying the city and having the permit revoked, this is untrue and i would like to clarify these allegations i looked at 378 sacramento street, the listing said it was not zoned for medical. my friend who owns several properties said i should contact the supervisor office and see if it could be zoned for medical use, i naunl and also e-mailed her again when the merchant's association informed me that a permit had been issued. at this point i merely questioned how this permit

could have been issued since i had been told repeatedly that the space could not be used for medical purposes i never contacted city hall to lobby against mr. kalika, the merchants don't want more retail space taken away from retail use, [inaudible] updating us on the neighborhood and street events, in addition in his documentation for appeal, dr. kaliaka also accuses me having an illegal dental office, i appreciate you taking the time to review my e-mail and respective on this situation, dr. [inaudible] garn n*et, i would like to thank the board of appeal and is the commissioners to give me the opportunity to speak in this forum. >> next speaker, please. >> hi my name is kale la,