applicable that was gotten over-the-counter permit and through october of 2015 that was through the building the same day and it was approved over-the-counter as i said and a permit was issued on the 15 of september an appeal was filed and we have the appeal suspended from 2015 after the appeal was filed i was contracted by the attorney for the property owner i arranged and meeting at the sited brought a structural engineer geotech engineer they met we had issues with the poles into the neighbors property you must take care of drainage on our own property it is a sloping yard i

let the engineers talk about it dan had some drawings not in the form of a permit but electronically i believe our engineer louie had more discussions lives with an approval by dbi the form off the board of appeals permit or a subsequent provision permit i believe that permit this is on the drainage issue so that would be approveable for us and one thing i'd like added is that all roof drainage is also directed into the city's sewer i was concerned about the drainage but want to make sure on to downhill lot water is gather the city sewer that was maybe that is some of the plans didn't mention

i'm available to answer any questions i think this is about as much as i have to say. >> the presidio's engineer indicated they added some strengthening to this wall at 4 different places is that based on the discussions with our departmental staff? >> i wasn't aware of discussions to strengthen the wall he let the engineers i'll have to take the word of the engineer mr. jones maybe you have a question for them but louie looked at the plan and did tell me they were approveable whether they included the drainage it is on there as well. >> the plans are small it is difficult to see. >> mr. duffy when there recent an issue with at property line

and one neighbors words against another and neither is taking the time to do a full survey yet in this case without a permit there is destruction and the rebuilding of an unknown permitted wall now permitted what is the - how does that work. >> we struggle on those nobody wants to pay for the survey the drawings every drawing have to a site plan so the permits applied for under 2018 filbert street he could get a survey and produce that if we saw that indeed his survey showing the work on his property and someone else taken that over we would issue a stop work order and address that the

form of a notice of violation and sometimes the two parties get together and split the costs but it was hard for me to determine the property line i didn't know the property line was an issue to be honest i wasn't thinking of property line issues but they could get together and come up with a survey that's one solution but the permit holder will be foreclosing to construct on someone else's property because of civil litigation i imagine there are a lot of property line disputes we deal with some of them can be on dbi but end up in the courts wears certainly not i don't understand asking for a survey we don't like someone makes an accusation to ask the

person to have a survey it is on that person it is unfortunate we like cooperation but the cost of survey is what it comes down to. >> i have a couple of questions inspector duffy so reading the brief two notice of violations or one. >> i have one. >> and if they continue to work after the first one is issued. >> that's an accusation i'm not familiar with i think there is one notice of violation i can look online and get back on rebuttal. >> the other question the appellant mentioned the fence height it is that still within the code to build. >> i believe this is 6 feet on a retaining wall is okay. i'll let mr. sanchez we like the height of the fences to be governed by planning if you're building a fence in our rear

yard and just regular you don't meet a permit for 6 feet or less and the site of the rear yard is not visual from the street is it applies with a retaining wall but if you have a retaining wall and want to put an 8 feet fence you're up to 14 feet planning may have an issue there is the 10 feet rule and mr. sanchez will speak to that. >> okay. thank you very much. >> you're welcome. >> mr. sanchez. >> thank you scott sanchez planning department to the one question to the one relevant planning issue is the fence under 9 planning code your allowed to have a fence up to 10 feet in height on the subject property without neighborhood notification without a variance so this is what the code allows

based on what i see here and what's been represented by both parties the if he has it is proposed the 6 feet above the retaining wall is code compliant there are disputes how high the retaining wall may not be raised at the highest point the retaining wall of the plans of the northeast corner of the property is 5 feet above the grade of the appellants property when they have a 6 footed effectiveness that's a total of 11 feet above the appellants property all 9 recommendations there's been retaining wall there have at least one fiat foot in height that's what we're talking about one foot with the record and it is difficult with the grade issues and grade has changed and in different ways but what is presented i don't

see anything that is compelling not code compliant no more than 10 feet above the grade when on the permit holders property that is where the planning department is i'm available to answer any questions. >> i have one mr. sanchez the backyard is sloped daurndz; correct so the retaining wall the appellant said additional grading at which point adding soil does that trigger the building or planning. >> some nevertheless of - well, it depends on the amount of excavation it won't trigger a - excavation a bit more than two to three feet can trigger and review but what we're seeing not trigger a environmental review or planning review everything is

in planning code. >> thank you. >> just to be clear for everybody the 1010 is above the original grade. >> ; correct. >> modified grade. >> correct to provisions the planning code acknowledging it may be necessary to take action having larger retaining walls rear yard on the ceqa lot in these cases we allow a retaining wall we don't want people falling oath but a normal height this is not the situation so it is code compliant thanks. >> a thank you any public comment on this item? seeing none, we have rebuttal starting with the appellant 3 additional minutes. >> so i guess the issue my understanding it the height it

is higher than 10 feet and i'm not understanding maybe the code i'm happy i don't know if so needed to see the pictures. >> why not we'll ask. >> you know i think this the the largest outstanding issue as far as the ownership of the wall anguish we did not it was never suggested to us we needed to competing complete a survey and as i said the voicemail made reference to the wall on they're side of wall again, i can play that for you when we purchased the property our contracting review mentioned the wall has to the extent had cracked and we needed to address this this is an issue to bear in mind for the future and this is the incentive of the ownership issue

the drainage concerns what is imposed i'm not in a position to comment whether or not this is accurate it peers to be but approved after the fact and an 18 inch wall not consisted with what has been built so those are the issues the biggest outstanding issue ousted the fact the wall shouldn't have been built the in the first place. >> you want to show us your

photographs. >> you ready for the computer you can stop that thank you. >> i submitted this previou y previously. >> actually, we saw that in your brief do you have to photo of

the entire wall of your >> murphys law. >> this is the original wall and the new wall and 5 feet one is from the mid point. >> okay. >> thank you. >> and since the question had come up. >> sir, can you turn that microphone on if not already on. >> this is all new soil and new construction and the filbert property. >> okay. >> with a degree of flooding

thank you, thank you. >> thank you. >> okay. we can take rebuttal from the permit holder. >> so a couple that of things to follow up first, the wall location issue that has come up a couple of times unsupported accusation to suggest this this wall was located on the neighbors property it is in line with the rear of this property on the property and lined up with other walls and fences on properties to the east on lots that are the exact same dimensions as the rear of their property and not under the ownership of the neighbors

we have made several attempts to reach out to the permit holder and discuss some of the issues unfortunately, we received no response to those attempts and aesthetics and other issues the wall as designed it is code compliant it is made of high quality and attractive materials that are lasting and the appellants concerns about the heights they're not code concerns with this permit we have proposed revisions to address this and shared with dbi and investor code compliant we ask you approve the permit with those revisions that will illuminate water run off on the neighbors property i want to point out based on dbis comment they've asked that the plan note that drainage from the deck and

down parts will be connected the revised plan has to that effect and it will, included. >> counselor if you do remind me how much higher is the new retaining wall versus the retaining wall which was destroyed. >> and highest point the retaining wall is 5 feet the western point that is 2 and a half over the original wall. >> 2 and a half feet over the original wall. >> uh-huh. >> i'm going to ask dbi about math later thank you. >> thank you inspector duffy. >> go ahead i'd like i'll ask

your question. >> it's okay. i'm good. >> if the wall was two feet when you started and torn down 5 feet eaten on top of you add 6 feet this would make the new wall 11 but had the original wall been sustained to plus 6 equals 8 where to you measure from what end and where is the math clearer versus fuzzy. >> you mean the conditions are hard to prove 0 only what we've heard and so the code actually, i if i could get the overhead i'd like show you the san francisco building co planning addresses fences chapter four

the fences on the property line showing shall not be higher than 10 feet and 10 feet from sidewalk will not be higher than 10 feet measured from the level of existing adjacent ground the general area prior to improvement of the properties that are a fence or railing placed on top of the a retaining wall should be measured from the it up u top of the wall so this section tells us you'll measure this fence from the it up u top of the retaining wall not the new retaining wall so we're you know it is - if they put the fence in as you said or the wall the same height and put a 6 feet fence on top of it it would be if'y.

>> what is confusing what is originally if a wall is a wall is two feet at all two feet of dirt behind it you raise the wall it 5 feet and fill in the dirt behind it now the dirt is 3 feet higher our measuring from a different basis so you know create our own code. >> you should show the existing code and a lot of people do those types of projects we see a lot of retaining wall on 3 sides and the grading of the landscaping people are spending a lot of money in yards i've seen this all of that needs to be reflected on the plans the neighbors sometimes love it and hate it we sesee people

spending a lot of money and stuff like this it is common we expect that it shown properly on drawings and drainage and stuff like that and go through a process nothing really against it as long as it is all designed and shown properly on the design. >> so would you say that the core it seems to me two core flaws one core flaw neither party choose to do a survey exactly where the lot line is so and then the other core flaw that was no permit pulled on a wall that should have had a permit and if it was the ambiguity would be a lot more

clearer to all involved. >> i will agree are there is also sections to the building code pour 4 feet or less not needing a permit so a lot of landscape contractor they think i do one last week there is that we then are in a position we're talked with precipitates owners and the photos on height we use the google we have to try to get communication going onramp both sides and try your best to figure out but the retaining wall is annoying this neighbor if at the can agree on the height of the fence maybe that will take care of it. >> thank you very much. >> mr. duffy

obviously the argument is go driven by this wall and the probability the intent for the permit holders to do this wall he wants to level out this yard hard to tell from the drawings for him to do that then he has to place retaining wall on the other two property lines. >> he's done that i believe. >> yeah. >> i believe yeah. >> 3 sided. >> i was going to interrupt someone i thought that was understood we're looking at the photos is basically like a baseline you come back from the backyard and have 3 sides and then you know do something with

the soil to landscape to put in plants or whatever. >> the permit holder is asking us if we deny the appeal there they're asking us to condition the permit for the plugging up the loopholes which you and i know they shouldn't have done in the first place and adding the drainage they want to do ; is that correct. >> that's correct. >> you want them to tie it to a sewer line. >> yeah. i did see the note on this plan they have submitted it does say that i if read it prior to making the statement but they were connect for decks and roofs to sewer system that's on there this is one of the issues a this

is a why we're getting so much water bunk what it is always better to speak to the neighbors before you start it didn't happen i don't have have problem with stone retaining walls don't work forever someone wants to do something different if the neighbor obviously didn't like the project i can see why he was upset at the start i would encourage them to plan they're talking about but code wise from dbi was if i can give the neighbor any you know dbi did look at this it went battery a couple of times before the drainage was taken to be that it will to be approved from our

geotech engineer. >> at the contacted him after the appeal was filed. >> okay. >> thank you. >> mr. sanchez. >> thank you scott sanchez planning department just to clarify i wasn't clear the heefth of the fence is 10 feet this is the permit holders property in this case they're proposing a health that is 6 feet above the grade as they additional it based on the previously existing grade and representations of the permit holder is that they increased the height thought about 2 and a half feet at the northeast corner from 2 and a half retaining wall to a 5 foot retaining wall when the height of the fence it is grade but typically applied that to be

preexisting grade the lower height 2 and a half above the neighbors property zero for purposes of measuring and 10 feet blow that they're doing less than this this is a code compliant fence worst case scenario is a matter of reducing is one feet 10 feet belief grades on the appellants property but as it is before you this does appear to be code compliant and i've not heard anything that would lead me to building otherwise. >> your close but the one photo they're showing not only the wall the new wall you but the fence to the adjacent property as you can see the differential that is 4 feet. >> that will be unfortunately, we don't have the previous conditions situation we're in.

>> commissioners, the matter is submitted. >> mr. duffy has one more point. >> sorry commissioners one more thing i shove mentions the work was done without a building permit so the concrete was powder without special inspectors i would ask as well that the permit holders be give us some sort of x-ray that it was the rear bar was installed properly to guarantee that wall is you know with the rae bars we again get to see it ask that will added on as well. >> commissioner fung i know you agree with that. >> that's why their strengthening it in 4 applause we'll need it as evidence i don't have a problem as i

mentioned it was supported without the benefit of a building inspector commissioners, the matter is submitted. >> that's too bad i'm not totaling supportive you know small business does something without a permit the point is if we don't do this the water will continue to come through from the place especially, if they fill it up higher than the pressure is greater so there's an issue there the question of whether we would do what the appellant wants to revoke this permit is a code compliant if we revoke this

permit likely to come back the same form one way or another. >> i'm inclined at this time to accept not everybody will be happy but we need to at least keep the water off the appellants property. >> so what are you proposing one condition. >> condition the permit. >> i agree it is sad that the permit holders is awarded for doing work without permit and consulting the neighbor the fact the poles were put in gives me an idea the person was not informed they campground wee what they were doing i feel comfortable the department requested the roof drains go to the city pipes and.

>> the water from the roof as well. >> if you're sensitive of this approach you'll be adopting the plans as a condition because it includes above those items. >> i'll stick with the x-ray. >> i just to your point mr. president, i would like to make sure the conditions of the x-ray is there because as you said anyone that pits poles in that wall didn't know what they're doing so they may not have known even as far as putting the proper rebar that is critically important along with adopting the plan. >> going to move to deny excuse me. to grant the appeal

and to condition the permit on the items we've talked about the plugging up the poles and the tide in of other drainage lines to the sewer as indicated the drawings and also, they have to demonstrate to dbi that there's rebar inside of the concrete wall. >> commission the other question though do they fill the repeat holes they'll have to be on the appellants property and so the construction we'll not deal with. >> okay. >> vice president functioning two of the 3 things are revised on the permit is from the board on the adoption off those it

will refer to those and the third one what the board has to duo issue a revised permits and that's what you're doing so you have that - >> can we indicate that the permit holder will need to provide x-ray documentation of reimbursement stole to dbis approval. >> okay. >> i'd like to indicate in issue with that. >> all right. >> does that make sense madam director. >> yes. >> i can reiterate but i ends to grant the appeal to issue the permit on the condition the realized plans dated december 7,

2015, be adopted and on the condition that the permit holders provide prove that the reinforced. >> reduced was placed the wall. >> okay go is there a basis for to motion. >> it would be based on the nov. >> this addresses the notice of violation? okay. >> thank you then by commissioner fung commissioner honda commissioner president lazarus commissioner wilson that he commissioner swig that motion carries that basis thank you very much we will move on calling item 6

kilroy versus the department of building inspection we're going to switch city attorney's we have a different city attorney joining us for this one item tom owen will be here in a moment the property at 1800s owen street protesting of a project development report rewarding the transit impact fee for the amount stated and in a moment we'll hear from the appellant the attorney for the appellant. >> i wish to make the same tloesh i've hired reuben, junius & rose reuben, junius & rose is recommendation of before the appearance will not have an

effect on my decision. >> thank you. >> good evening commissioner honda a congratulations and i'm john with reuben, junius & rose representing the appellant in this case, i need to put some things the record accident first one is the jurisdiction issue which is a 12 page limit and the city spent 6 pages on jurisdiction i hope to address that in a matter of a couple of minutes the first issue in order to build a project you need to pull a site permit to the extent the code compliant fees be paid at the time you must pay those fees even if you don't believe their owed which is our x-rays when you pay those of you wish

to protest those fees you file a protest then the protest requires you noticed a hearing and come here in 15 years we're here at the board of appeals jurisdiction to know that the building code we end up here to discuss the matters there is a discrepancy between the planning code and building code with the authority relates to the calculation versus the spits with the keep scope the impact over and over disputes over others calculations of the fee or impact requirement is based on but regardless because we're asking this board to find based on an oneself criteria that was imploded by ocii and dbi the fee was i think correctly calculated they apply

it this is the proper venue for the appeal we challenge the fee as an ocii breach or default under the o pa, however, in california champagnes of the administrative is a prerequisite to filing an action noted in the 2002 downtown plan case if we simply sued ocii directly that i'm not suggesting we are not or are filing a lawsuit we should have filed a appeal so the governor has a changing chance to get it right this is what the authentication administrative hearing is about the parties agree the projects in mission bay south are special in the brief acknowledge the redevelopment projects are not subject to conflicting louis of

the city in terms of local laws that conflict point redevelopment plan and the documents are void projects the california one of the basic principles of california land use the landmark cases are key over the city of berkley and the city of berkley from 1978 the legislative proximities the field of redevelopment therefore the california health and safety didn't authorize the charter city to administer this even by an initiative local building codes or zoning orientals governing the community redevelopment agencies are not applicable the local our local 2002 downtown plan speaks to this although the redevelopments

agencies were all abolished it is unchanged it speaks to the situation clear and plain language in march of 1996 bob determined i'm quoting where a local ordinance conflicts with the community development plan the ordinance bylaw must yield it is necessary to examine each plan and the it is pursuant to the plan to determine whether or not a conflict exists closed quote that is part of zoning administrator opinion is still the books the sf r a redevelopment agency but the city seize it as a must the redevelopments plan it an enforceable commenting commitment on the other hand, there is no question that this board as

jurisdiction of the planning code the t d example f according cot planning code i'll quoting from the opinion this remains the law it is necessary to examine each individual plan and other participation agreements to dressing room whether or not a conflict exists the city claims it is clear the city's position conflicts with the motorbike south development plan the o pa your task should be straightforward to proximity the planning department in favor of the organization pa and we submit it exhibits to go with the 12 pages and the documents are fixed the parties appear to agree only two 2 types of fees they are

existing fees, new fees, and increased francis scott key fees as those are defined in the redevelopment plan it's the t d i f creates a conflict with the redevelopments plan and must veiled so let's go through the parties agree the t d index f didn't exist of the plan clearly spells out those fees no disagreements the t d i f is not a new fee of the redevelopment plan the t d i f can't be new it existing in 1992 and it would be listed it didn't do that and finally a it can't say be an

increased fee the relevant plan of the language is a three to 4.9 sub c sub two i have more i'd like to finish i'll do that on rebuttal. >> how much more are you thinking. >> one ahead sound-producing electronic devices are prohibited at this meeting. please are t ded i f was not a fee the counter fee was an existing fee and employed with the mission bay setting this period has run and after 2011 that fee politics with the increases as an increased fee this is not one of the types of

of the fees comfort women that conflicts with that plan the redevelopments plan nop a is the imposition of the city regulations they'll materially increase the cost of experience with the plan $6 million is a material increase. >> thank you counselor. >> thank you. we'll hear in ocii now. >> we're going to hear in dbi my apologies. >> even appealed against dbi we'll have mr. morales speak from ocii as you may know 9 things from $6 million plus of the t d i f have been retired to

dbi thank you. >> commissioner honpresident honda appendixes is the in the course of the trial agency to the redevelopment agency even though the redevelopment agency was desolved ocii has retained all the land use authority in order to enforce enforceable obligation the state has deemed to be still in effect and survive the disillusion of the redevelopment agency that are this this is fairly straightforward and to be simple and appellants council is made the arguments that we would make but i would like to start with

the jurisdictional question if you will i'll briefly describe ocii as the decision maker on land use has applied the redevelopment plan as it relates to this large office building in mission bay setting this office building is controlled the mission bay south redevelopment plan and the agreement in reviewing the project ocii has determined that the streents applies as a new increased fee the redevelopment plan incorporates the planning code in this respect saying that the redevelopment plan allows and authorizes ocii the in the course of the trial agency to impose fees and actions such the

t d index f permit was issued in mission bay south the jurisdictional question is this the building code is it quite clear that board of appeals in reviewing the t.i.d. f has a limit review in addition 9 planning code i said was noorpd by reference through the redevelopment plan is even nor explicit it says that the board of appeals didn't have the authority to review the legality of the challenge to t d i f and more explicit and says that the board does not have the jurisdiction to review whether or not the imposition of the fee is fair under the law so under the city laws that

create this body and the governance of its jurisdiction it is clear that the board does not have the jurisdiction to hear the appeal as the gentleman appointment the in the course of the trial agency is experiencing the authority under the redevelopment plan and in several cases there is been before this board it was cited in the brief to you this board determined that land use decisions made by the redevelopment agency and the in the course of the trial agency are not subject to tto the revi decision about why it meets the

redevelopment plan is essential beyond our purview we ask you to - i want to briefly look at the substance of the matter under the redevelopment plan the appellants argument i don't know pits this in a limbo not existing in 1998 not angle increased fee so it didn't permanent have any status under the law and naufs ocii says this is an increased fee in 1998 at the time of the adoption of the redevelopment plan the tdif, however, we pointed out the

brief there is another possible agreement that could be made this is a new fee in 1998 the fee didn't apply in mission bay south and therefore didn't cause an increased fee but a new fee the full amount of the fee applies in either case the fee has been appropriately - within the jurisdiction of a successor agency the appellants point out in our brief the tdif the ordinance that the board of supervisors adopted was incorporated into the redevelopment plan suggests that the redevelopment plan does not impose the tdif

in fact, the tdif ordinance starting in 2004 when that was reprimand was clearly preserve the authority of the successor agency to impose the fee and it says that the fee is governed from the ordinance it's the fee is governed by the redevelopment plan the determination of how much the scope of the application of that fee is to be determined by the redevelopment plan and in this case, the successor agency hsa as the decision maker on the project has the land use authority over the project, has determined that is fee should be as i stated an increased fee under the redevelopment plan and we urge to reject the

jurisdiction and the successor agency has followed the redevelopment plan and the meaning of the plan i'm available to answer any questions. >> mr. morales, the your brief didn't provide great details on the lofb of our probation how do you guys come to to that between the 6 something and the 3 something. >> commissioner fung i've auditing u alluded to it as an increased fee pursue the agency determines that tdif was an existing fee of $5 at the time of redevelopment plan adoption in so 98 and if you look at the redevelopment plan although it

clearly does state that 3 existing fees are in effect of the date of adoption in 1998 for childcare and schools and art that provision also says that subject to the following provision the redevelopments plan, which refers to the ability of the agency to impose new and increased fees where the new and increased fees occur are imposed over the 10 year freeze think fees and actions of the redevelopment plan provides for are fees of citywide applicability and not redundant of the master developer to provide affordable housing and open space and first of all, the reason there was a 10 year freeze was to encourage private investment

the early years of redevelopment plan redevelopment plans as you may know are do not the generation of flu property tax the area that can be used to pay for infrastructure and other related activities to allow the project area to develop appropriately under the plan so the 10 years was part of that incentive to create a catalyst for private investment and as a result we didn't impose the fees during those first 10 years. >> that's it. >> thank you. >> okay public comment if there is anyone that wants to speak under public comment. >> seeing none, we'll have

rebuttal. >> board member commissioner fung i'm glad you having asked that question and at worst-case the tdif was a well-known fee in 1998 the 1988 recuse building case was plastered over the papers and all over everywhere everyone go knew about, 1987 and choose not to exclude if in the redevelopment plan the recausation of the pro rationed can't start until 10 years after 2001 which is 2011 and the numbers are dramatically different if there were the case we've argued the tdif will have to be there's under the redevelopment plan is none of those any attempt to impose that

results in a conflict and it precludes any material of the increased costs in conclusion i'll say some of the things that mr. morales mentioned the mission bay south was not a trick by the outside force the board of supervisors and mayor approved it in 1998 at the time it was not at all certain the streets of mission bay were paved with gold and the developers pay unlimited fees on the contrary the deposition required a legal finding by the excessive decision makers the area was blighted so the redevelopment plan excuse me. law and finance in 1998 the city acting under the hive officials adopted a policy that made bvkd by law that limited the

imposition of developers at moab even so this is not a case where free rides are given to property owners like the melrose and other facilities district payment are still patsdz on this parcel by the second i have owners we're asking that as relied on in good faith by the appellant thank you. >> oh, actually, i have more time. >> it is a - that's a list i want this read into the record no substance okay the record a list of citations i provided. >> on the board okay. >> if you want a copy.

>> thank you. >> mr. morales. >> members i would conclude by saying that mr. reuben argument is a legal argument about the exemplifying and this is exactly what this board doesn't have the jurisdiction to review and we can gotdif and this is exactly this board doesn't have the jurisdiction to review and we can go through but that argument that fact that removes this matter from your jurisdiction thank you. >> mr. morales. >> so what is the basis of redevelopment tax increment and the difference which was blighted and then the result of a new tax after a new building

and the land it improved and the benefit goes into the redevelopment land; correct? >> that's correct. >> is that still comborlsz. >> yes. this is enforced through the ownership participation agreement that is an agreement between the agency and the master developer and passed along through assumes and as i understand agreement to individual owners of the property that is being developed now in various blocks and lots in mission bay south. >> so the mere existence of the ongoing tax increment structure which will character this as redevelopment agency land even though the redevelopment agency has been gone and the successor agency takes on the continuing role of the redevelopment agency to capture the tax increment.

>> yes. the state as clearly and inclusively determined the motorbike project needs to be completed it is an enforceable obligation that survived the dissolution the tax increment authority is retained to use the tax increment to repay the developer for payments that is made related to public infrastructure all of those are embed the contracts and obligation which quite frankly again are not before this board they or agreement that are if their say is challenge it will only be a civil remedy the court but the participation agreement and whether or not it authorized the fee like the tdif is simple not before you. >> thank you.

>> commissioners, the matter is submitted. >> so i think being a graduate of redevelopments agency complirgs commission and working or working with the redevelopment agency i have some experience and i don't know if i have knowledge but experience. >> and one of the special opportunities created by redevelopment that was an island that pratsdz by itself not subject to planning certainly planning codes but pretty much redevelopment did was it need to do to correct the blight and others 17 reasons i forgot what the cree to correct that

opportunity the area the first place and put it out of the jurisdiction of the city which made it very convenient for i will say us to do our work and mr. morales to do his work and one of the reasons i asked about the survivor ability of the tax structure really indicates that the redevelopments agency has survived and survived the demise the form of the with the jurisdiction over with occ therefore i don't believe we have jurisdiction over this case so i would move we would deny the appeal based on the jurisdiction issue. >> is that a motion.

>> yeah. i think so i rarely make a motion i just did with reason and thoughts. >> call the roll unless others commissioners that have something to say. >> i was going to talk about the mixed results of the effort but that's all right. we'll let the history be the judge. >> okay. so all call roll by commissioner swig to uphold the fee that the board lacks jurisdiction. >> commissioner vice presiden fung commissioner president

honda and commissioner wilson okay. that motion carries with a vote to 3 to 2. >> mocha we take a break. >> okay. we'll break we're reassuming the wednesday, january 27, 2016, meeting the san francisco board of appeals we're now calling item 7 david's those good versus the planning commission the motion holders is howard llp the properties on howard street appeals court the issuance mark sanchez depreciation of compliance and request for sense to construct a over basement approximately 2. plus with 3 are

one hundred 33 between of ground floor commercial space into under side reduction of ground level wind cutters and height and bulk limitation under the planning code section this is the planning commission motion this matter is on for further consideration heard on december 9th and continued to allow commissioner wilson to participate the vote commissioner vice president fung moved to you uphold the motion that the parklet explicit error the vote was to to 22 to one and commissioner wilson absent because 3 votes are neatest to overturn the planning commission action the motion failed commissioner swig moved to continue to tonight when all 5

board members are here for the vote this is the typical practice in cases where an absence commission can effect this is in the appeal i believe commissioner wilson has confirmed she's reviewed the video and read the materials; is that correct? >> yes. >> unless pa board member has a question for the party we'll resume deliberations okay. >> point of order. >> come forward meeting. >> sue hester the point of order that the board has required under city and state law to view the entire

e ar when you deliberately when you have this the last time only draft eir was an issue this is a response which you explicit approve it has the dialogue between people like me and the planning department want needs to be done to get sufficient eir my comments are at the end 16 pages because you were required to review an eir your action at the last meeting is for the proper you voting rights voted without having the eir in front of the you and therefore you must vacate and deliberate on this all of you and people if the public member of the public must be able to explore who is the

comments and responses with you that has not been done i've submitted my brief conducted e concluded both the law san francisco administrative code, the brief that went beatings between me and ms. sgrmg there the record i attached any brief to this hearing the documents that you should have been explaining how we came to this and he i believe you must go back and have rehearing not a row vote but rehearing based on ceqa and the admin code i'm willing to answer any questions and the i i didn't srony that td

and week after mr. osgood signed a briefly and at the same time provided trying to get from the redevelopment agency on the 12, 13 and 14 i got access to the files if the redevelopment agency consideration of the gap building which i was trying to have in my brief which i couldn't i am of the opinion you must follow the law and the law is you can't have a hearing before you have the full eir and it is unfair to the parties if it is provided after the fact it is

unfair it me and mr. osgood and the commissioners one of the things i'll hope if i read carefully the entire responses you'll see that commissioner swig's issues and commissioner honda's were pulled up and rescued in the comments at the very end thank you very much. >> thank you. >> mr. bryan would you like to respond to that. >> well, i example the first point is that we haven't heard the parties the matter we've not heard from the pirates party to the thirty 9 on the issue and, of course, nothing to prevent the parties from commenting on the response to the questions

because they themselves would have known about the eir but as - a matter of precaution the commission could allow the members of the public to provide information tonight they would like to provide i under the comments and i'll say to remind ms. hester the deliberations were not closed at the last meeting this matter was continued you didn't make a decision on the matter this decision will be made do i believe you've received the comments and reviewed them? >> i'm sorry you can't speak. >> the record was not closed by any action or order of the board

the matter was continued because as you've done in the past there were a 2 to 2 vote the motion failed and you decided as you've always done for the matter to continue with the 5 commissioner i'll certainly not object to you're letting the public comment comment. >> can we restrict the comments to the comments. >> (laughter). i believe so then you can deliberate >> okay. >> so the possibility will be to allow public comment from anyone here specifically on the responses to comments document which was part of the environmental review. >> so we'll hear that with a show of hands who will

participate and comment on this. >> ms. osgood you're a party so it's not appropriate but other people that are for the parties to the appeal so only a couple of people. >> please because of the size - >> okay. so whoever wants to speak first please step forward we'll limit to 2 minutes because of the length of the agenda. >> they want to speak please come to the platform please. mr. protest none has a comment to the responses i was not told the comments to responses were provided to the commission i got the e-mail i didn't i don't know if so city attorney september it to the planning department or not what i would like to refresh

your memory to is that the end of the comments and responses my part at the end has is inherit two and 3 you have excluding information about stepping down to the waterfront that's the issue commissioner president honda and commissioner swig we are talking about at the last meeting how this is a drastic difference how the waterfront has been developed he was asking get the files from the redevelopment commission talk about the real heights i was aware of how that gap building was skruptd over years of discussion this is right next door to the gap building and that should have informed you if you had questions you would think if you read my comments you'll understand that those comments were raised consistent

by me and other people as well they raised it slightly in a different manner so how comments and responses provided information you didn't have at that last hearing i think that is improper to say oh, none can be told you're changing the documents. >> okay ms. hester. >> i have 15 seconds left i think i have now 20 seconds left and so you have to have a record that the public knows is the record that appellants know is the record i had no way of knowing after i did this thank you. >> thank you. next speaker, please. >> mrs. o good you're a party to this appeal so you can't speak

under public comment. >> you're recommending the parties make comment. >> i'll protest please don't start the clock. >> please continue. >> i didn't receive the permit holders brief on the scheduled date i have it, it is postmarked the date i was populated to receive it i got it the yesterday or the day before. >> which item number are you referring to. >> the brief from gibson son dunn. >> which matter there are two separate matters if i'll correct we're back to the matter that was heard 3

weeks ago. >> i don't know this was so irregular. >> not irregular it was you're just brought up was for the variance okay. >> okay. >> the commissioners who you are speaking mentioned can we restart the clock please okay. i'm on the thirty 9 was brought up the comments and was not addressed by the planning department the project does meet the section rear yard exception that mandates the configuration is adequately and error to the residential units and no open space provided the project fails to meet several urban design policies and objective 3 modification of new development to compliment the city pattern and the resources to be conserved the

neighborhood environment and promote harmony in the transition between new and older buildings and policy 3.2 avoid extreme craft and other characteristics that cause new buildings to stand out - i have a graphic to stand out and excess of their importance policy 3.6 relate to the bulk of the buildings to the scale of the development and avoid an overwhelmingly and dominating porn's in new construction obviously 16 create and maintain interesting urban landscapes and materials included amenities to the ground floor to create

pedestrian interest due to the reduced setback in minimal magnificence between the towers the frontage if have an engaging pedestrian experience those are all thirty 9 issues not accurately and the the case of abusive the planning department discretion thank you. >> thank you. >> anyone else to speak on the responses comments. >> i'll invite others to speak. >> you want to hear them next or the members of the public. >> hear the public first. >> okay. >> thank you. i'm david live on olsen street the plaza building here's my card thank you i wanted to make a few comments building on the comments from the previous speakers as a

residents of the neighborhood again, we are i see a lot of people wearing stickers housing not parking we don't have objections our neighborhood has embraced the density all the buildings this is not the issue how does that building blend with the existing structures stepped to the bay the community you know the vote on 8 washington certainly said that higher buildings and directly on the waterfront is not appealed we should adhere to the guidelines that were established under years ago i'm stunned this thing got approved without the setbacks and the variances it dpaing so we have no to that this building is asking for

things that doesn't make sense and the nature the neighborhood stepping down to the bay and the housing affordability action act and making available for housing this argument seems bad relative to again, the fact we're welcoming krushgs construction just a matter of why they should get those variances. >> excuse me. i thought we were asking for public comment specifically on the comments and responses to the eir we were limiting the public comment and this is not working so far as i am concerned, we're rehearing the matter. >> so anyone that is speaking specifically regarding the public comment from the last hearing? if so, please step up >> ms. murphy if you want to

speak please step forward. >> good evening mary murphy council to the property owner project sponsor i think there is confusion the audience at the moment it seems to commissioner lazarus comments that we've been hearing people relitigate, if you will, the section thirty 9 approval and it would be in fairness people have not yielded been speaking to the rfp available on the website and available for many, many months and a subject of appeal at the board of supervisors where it uphold 11 nothing unanimously by the board of supervisors but people not speaking to that i'll put the question whether or not in fairness we have a lot of supporters that want to speak about the benefits the project and speak to the thirty 9 i want to put to the boarded if you board wants to reopen to let

everybody speak and thank you for having me continue this it seems in fairness we've heard a number of people speaking about the thirty 09. >> we've made the decision to go hear the picking up public specifically. >> if i may i appreciate the counsels advise i go back to some was said this is part of public record and nobody was in speaking to it the last hearing we may not have it in our hand anyone can bring up so not deliberately left out. >> if anyone's wants to speak directly recommend related to

the comments and comment for the variance decision and people will be able to speak more broadly. >> i'm maefrth a resident and i've submitted letters for the board. i guess my comments and responses to the comments was you know, i received a postcard the mail and did my best to follow the guideline i feel a monk monkey whenever was thrown in my responses i've not been given the knowledge or necessary to respond as a citizen and sorrow myself cheated as a retained >> any other public comment there commissioners returning to deliberation. >> actually, i want to hear

from commissioner wilson. >> not to put you on the spot. >> were there further questions of staff i see that planning has been expanding their staff here there were a number of questions raised last time that if you weren't satisfied with the answers you can be now. >> i'll make comments or ask questions. >> and maybe i'll pulling put in in the former of questions i felt liefks preaching last time i didn't like it very much mr. sanchez. >> so the issue i'm going to take up 3 issues where i disagree with commissioner vice

president fungs position that planning didn't error the first issue and we saw a photo of building which will fit on block fully in view the most important promenade in san francisco and we've looked it is a matter of the record of a larger view of the promenade and of the front wall of the embarcadero and every building i've looked this closely since the deliberation every building is stepped up to the plate back only this building in its design form this block which has had no effort to be stepped back last week every other building you

can go to the rights or left you can't finds f them it is stepped up to the plate back the high region what was planning how does planning justify that this building can is it correct out in it's mass and block without any relationship to anything with an within a quarter to a half-mile along the important promenade of the embarcadero. >> first i'll say that the department shares the concern and shares the exempt we will have great design ♪ location and the department worked with the project sponsor to achieve this and the two most important limitations on the property is primarily the lot dimensions the on the gap

building is a through lot they have much more room in order to do the stepping so have a reasonable plan in that locational aspect of this which we discussed last time this building is can be agreed is not directly on the embarcadero it is on the stewart street with the operational in front of f it not fully developed but could be developed the future the department i have today on addition to tilly chang who worked on the case and jeff the current planning director and one of the staff architect that worked on the deliberations so go into detail how to resolve but look at the beverage that was created by the other buildings where we step back and have it reflected in a

meaningful way that was the some of the design goals the department but i'll see if our staff has additional comments that can be added >> a followup on the subject isn't is sometimes that the building shouldn't be built i mean like fitting the square peg into the round hole and the property owner must be forced to recognize that in fact, from the square peg the round hole and the scope of the building is simply didn't work and so why force this is something that i feel has gone on here but like our opinion on this because you have a big block i didn't building next to buildings with setbacks. >> i'll agree buildings should

not be built other architects have that at some point but our responsibility to bring it to a point it could be sford to get the design revisions and maybe jocelyn can discuss in greater details to get to the point we thought it was supportable if fit into the hole and yeah, so i'm going to turn it over to our design staff and better articulate that. >> i'll have like i said 3 so two more questions after awards him hard-pressed to add to that the pardon in design consistently the highest level of staff it started out as a

non-complying building we first saw the project come in the door it was - we were debating the relevance of that height and how supportable and very vigorous discussion what result the building you see before you today, the other discussion most resist i resists from the day it came in we're establishing the street wall height that was appropriate for a building not an on the embarcadero but close enough often the embarcadero and that's partially the pattern you're referring to the gap building and the ron con the 75 or one feet along the

embarcadero that is formed by you know the - there's a building zoned and 64 feet our dislikes went to this probably will be available for sometime even though a tier back in the embarcadero it needs to respect that street wall and height that data we requested a setback another that height as a southern dimension that was significant in addition to other options we were exploring with could the project sponsor apply or develop that paper on a pubically owned sites in the embarcadero

we believe what resulted from 9 iteration it manifested witnesses the embarcadero for the foreseeable future with that building intooej the future sits on the embarcadero and you know from that that module development i think the project sponsor and the architect can describe it more but a building that scales based on that height that's why you see those kinds of building modules on the elevation it relates relates to the basic wall setbacks and repeats that is that a stellar building i think so one of the believes that a flagship was done work in

the city for over 50 years continues to do excellent work and fits the context of its time and i think that you know it is a building that will be i think a building that belongs on the waterfront. >> so you paid reference to the fact it is half plain clothes back and other building in front of it how wide how deep from the embarcadero is that available lands with the 65 height. >> it's a triangle lot. >> how deep. >> so from stewart street 2 and a half feet and overhead82 and a half feet and overhead please.

>> incidental i'd like to take the opportunity in a chang this image was the material submitted to you that shows that the subject building is one and 48 from the embarcadero whereas the gap building this building here is 12 feet from the embarcadero so whereas from all the images shows that it is indeed on the waterfront and will be very prominently viewed it is significantly setback with the dpw site this has development potential and heard in dpw they're interested in developing that the future is the paper that is more akin to the adjacent parcel that is existing directly on the embarcadero you have not answered my question the one

building is setback one and 28 feet how deep is that papering parcel from east toe west. >> you mean how wide and exactly. >> with you say it is 75 feet? i'm just guessing i did not measure >> it appears it is triangle parcel is tapers. >> it is narrow and didn't require an advance any point is this you know regardless of whether it is venerable or ndev n

if it is. >> it is illicit impossible to set it back that's what this is my issuellicit impossible to set it back that's what this is my issicit impossible to set it back that's what this is my issueicit impossible to set it back that's what this is my isscit impossible to set it back that's what this is my issit impossible to set it back that's what this is my isst impossible to set it back that's what this is my iss impossible to set it back that's what this is my issimpossible to set it back that's what this is my issue the. >> i understand absolutely understand this building the proposed building is one and 28 feet off the embarcadero the prospective it is on the embarcadero arguably but a piece of land in front of it you look at the narrowness is this a possibility how would there is a possibility of stepping back that front building on the embarcadero to continue the neighborhood atmosphere which extends a quarter of a mile in

both directions i'll answer that question i want to clear up the misconception that buildings need to step down to the waterfront that's not the design element the intent of the urban design for the conservation of building step down it is perfectly acceptable to have a building straight frontage on the embarcadero tbs a desired effect this strong street wall but the back buildings as. >> receive from the back waterfront step up and step back to the downtown core they get higher the buildings are not to be stepped down but the conservati

convolution of building. >> i want to raise a question on one of your statements earlier. >> you lost me when you talked about this building having slots horizontally is a certain scale i don't see that at all how does that work in your opinion. >> i'm going to defer that question if i may to the projector architect if you don't mind. >> i think they'll be more articulate and knowledgeable did you have another question. >> i have a different topic. >> i want to add one more thing to the stepping as a matter of a point of comparison the gap building that you kind of have been using a benchmark

the tower is the same location and approximately same height if we get a benchmark. >> you remember i heard the gap building and hills brothers so - >> in one form of another. >> the computer. >> if they fill the bay in (laughter). >> we need the computer. >> yeah. could you switch to the computer please. there you go. >> so okay. i think i can respond in a little bit mower clarity i hope to some of the questions first, i think that david winning slow stated it

clearly we have a diagram that shows the notion those have improved stepping down to the waterfront and in orange higher than 75 feet and the yellow is the gap building slightly higher or close and the pal yellow the building directly on the embarcadero north of howard those don't step their mid-rise they include on the dpw lot but on the other side of the setting up the piers and two-story restaurants that were built if rincon park as to the specific question of the setbacks and how the slots in the building relates to those

we've heard a lot of times this building has no setbacks. >> the sicken not up the pictures are not tracking. >> perhaps the mouse is not working have you tried. >> it is advancing on this screen but not your screen out of sync with each other. >> there's a hardcopy. >> can you switch back to that and see if you can see it.

>> well, yes is that possible to do that with the overhead sorry technical difficulties. >> let's try one more time sorry for the delay okay so the horizontal slots are an

important part of the design that relates to both willfulal setbacks ensue the reducing the mass of building so it is true that in some cases the flsh on both sides and many of the setbacks the building on all four sides as 23 feet depending on which side of building you're referring to stepping down the shaded in orange show us the amount they vary and the results is mostly the results of staff and leadership over many years and it is a critical part of design concept it both has literal setbacks with the

terraces. >> i have further. >> does that answer your question commission commission. >> sure i'm fine. >> i would like the same setback i saw the photo and the garage juxtaposed to the and the gap building setback and the postal of the garage at the same height action the pedestal of the gap building i kind of like that but a different story any second question mr. sanchez so what again in having to sleep on this for a week or so the issue of the open space and i guess this is to the south and the argument that well, the park which is on the land really

gives the space the air, light and breathing room to the renal apartments and assumption keyword that assemblies that land will not be built upon is extremely makes me nervous because assuming for the rest of times and as long as this building will be standing that nothing unless it is jarthd that will be built on this lands i find with all due respect the fault with the planning department in that piece of judgment that the there is accurate open space because there's a on a assumes the park will not be built what about that assumes. >> that's a concern that

certainly it calls for speculation never development for many lots never build anything there this is now 2016 and they're building something that in addition to the arguments that have been valid because of low probability of development on the lands the planning code and the residential district the minimum rear yard requirement will be 15 feet and so they're providing that i believe the minimum at all levels from that rear yard line so they're kind of paying respect to it and they should the unbelievable happen not require an enclosure of the windows and the use of building on one hundred haven is right on

the property line or close to the property line i think that what they put us here with the setbacks with the kind of lack of likely hood it does address those concerns. >> even with the opportunity their might be building. >> if that's the case then you know certainly we would look at other issues under the planning codes didn't deal with tower separation any tower that is on that property would need to be calculated at a distance from this tower i don't have the dimensions making maybe the project manager did but that provides a bracketing room between proposed development and the subject property. >> and the further tap eric garcetti setback is certainly

mitigati that. >> the dimensions of those setbacks under the west and south side of the building a 15 foot setback and a parcel to the west a 25 so that's a total of 35 more than the minimal requirement and as you may know the zoning districts in a the gap building is over one and 60 feet on setback is 40 percent of the tower it becomes close to the fact that the 25 foot standard requirement and the two properties to the south that you mentioned one is the gap the portion that actually touches our side is crisscrossed in

favor of the multiply properties the triangle portion as you may know has no street frontage a dimension given the setback of this code the tower on that that side is a foothold i appreciate the values go up and people start skwooegz into new pays unto in manhattan they're in the one and 20 foot towers. >> does that answer your question commissioner swig. >> that's fine. >> a third question the subject was raised last week, i building the brief that this building is acceptable because it is like many other buildingsthe downtown core but the downtown core he agree

if it were sitting on the corner of bush and montgomery i think that auditorium will hold true because there is significant density there is tightness and that urban congestion you've made reference to but i took expectation i find fault with our reading on this this is not the downtown core it sits on the embarcadero and again, there is the assumption that there might be. >> building built on this small sliver between it and the embarcadero that's like the assumption i think that exists on the south side and this wall will stay in place for the rest of the time with the embarcadero and therefore, it is really not a different situation so how do you elevate that i mean right now it is open and

probably stay wide open for quite some time that's my assumption how do you base that f this is a similar situation as the downtown core and again, i throw out montgomery and . >> i think i'll clarify any previous comments it is kind of consistent and similar with the 3-d zoning district. >> stretches to van ness the properties is i've said one and 50 van ness are the c-3 but at the edge west versus east we see similar requests for opera buildings and residential building downtown you must provide a rear yard or seek an exception it is difficult i can't help but think of a c-3

residential project not requested a rear yard exception or modification in some way i think this something we need to clarify throughout the downtown district not just the downtown core if that clarifies. >> where else the downtown district a board and important promenade like the embarcadero on which the other side is san francisco is the barrier and the entry to san francisco bay area that is kind of makes me scratch any head butts argument. >> i think you're right this is iconic you said about the proposed view that welcomes you to san francisco but you know in terms of the step back i know that it was addressed eloquently much better than i could do the zoning

prospective is really the stepping is manifested not through the the discretionary dine design but manifested through the height limited so we have the stepping down the height limits as you get towards the bay that's why it the 65 feet and this property 200 feet so this is a code compliant project in regards to height they've so you get an exemption but they're not seeking a change to the height for this project certainly part of previous view the project but it does comply with the height limits established by the downtown. >> i have a question a lot of the my concerns at the last hearing were specific to not so much the design but the

neighborhood and context is it my imagination i look at the brief the original pictures railroad more stark and a wider building a week or two weeks it is blending with more colors z did some place go with their i make. >> the part of sponsors submittal they have made more color accurate renderings and have color samples to review. >> again, this is an extension from thirty 9 we're getting late into the evening we still have the other case to hear so, please keep it on point. >> i'll certainly try i suppose the images on the screen will not show it clearly but switch to the overhead this is

not a glass box but uses stone and glass that are in proportion that are appropriate this is a sample of the stone that's been proposed for that quite sometime we do apologize the reproduction of the images and the images we've chosen the stone a white and washed how the outing this was certainly not our intention if you switch to the overhead again, this shows the materiality of the building in a row we're concerned about the gap building a light limestone and brick and broujz our building as a light gray granite and wood and has glass and that's the next building in the sequence so actually entirely glass above the 16 floor.

>> more to the point the slabs between the levels were white last time now their brown and green and how did that happen if i'm looking at your drawings with the arrow i see a very mellow warm orange color that didn't look like it is orange to me and the drawings you're referencing is a dusk view the slots between the levels are clear actually, the slots between the levels wood and wood floors and a lot of glass so you're seeing the light in the building the displacement the material that is most viable visible is the stone and on the street shows the character it is a natural stone not frost glass

or precast concrete. >> my question is - >> okay. >> commission do you have any questions. >> yes. i have one last question ms. murphy this thirty percent is that anywhere. >> what. >> thirty percent affordable. >> the 33 well, this project is providing a in lieu of fee to 33 and 1/3rd percent this is required by law to have a 20 percent but the thinking outside the box volunteered to increase that to 33 and 1/3rd percent and i understand to confirm where is that in an agreement. >> we priority an agreement to 9 board of supervisors and it is part of public record we agreed

so we made that commitment no writing to the board of supervisors that's part of with respect to this project. >> thank you. >> so for just to follow up for public records since us are under oath their guaranteeing the 33 and 1/3rd is to be met. >> the building is built we'll pay the 33 and 1/3rd the same way we pay that? the the letter i'm sorry, i didn't bring it but submitted to the board of supervisors thank you, ms. murphy. >> no further questions? >> further comments? oh, sorry we spent a lot of time on this i feel it is fair we give the

appellant a few minutes if they have any questions >> mr. osgood anything to say. >> in regards we gave the project sponsor a lot of time so in all fairness. >> a couple of things in response real quick planning did not give this project a lot of care in fact, they've got all the way to a public hearings that was originally proposed nobody at planning stopped that i think we stopped that through our objections and planning commission said they would have voted for the huge building they've abused the

discretion and the eir itself notes that this i don't remember the exact words but points out this is essentially the first block the city that actually shows that you know it is 75 howard not one 75 howard and another point about the diagonal a dispute within the port and the dpw who owns that triangle in front the port said it's there's they've been trying to market it for decades they've having had no takers and the lot keeps getting smaller they put in the palms trees the height limit but the planning not kept up if