the san francisco board of appeals. the presiding officer is commissioner honda and we are joined by tonight's by our vice chair commissioner vice president fung and commissioner lazarus and commissioner bobby wilson and commissioner rick swig to my left is brad the deputy city attorney and provide the board with legal advice at the controls is gary he's the boards legal assistant i'm i'm cynthia goldstein the board's executive director. we're going to be joined as by we're joined by representatives from the city departments that have cases before this board. sitting in the front right now is amanda representing the bureau of mapping and she's joined by her colleague raul shaw i believe chris buck is here in the front right now with the bureau of urban forestry and scott sanchez will be here shortly and representing his office and the planning department and planning

commission electronic devices are prohibited. please carry on conversations out in the hallway. permit holders and others have up to 7 minutes to present their case and 3 minutes for rebuttal. have up to 3 minutes - no rebuttal. to assist the board in the accurate preparation of the minutes, members of the public are asked, not required to submit a speaker card or business card to the clerk. speaker cards and pens are available on the left side of the podium. if you have a question about the schedule, speak to the staff after the meeting or call the board office tomorrow we are located at 1650 mission

street, suite 304. this meeting is broadcast live on sfgovtv cable channel 78. dvds are available to purchase directly from sfgovtv. thank you for your attention. we'll conduct our swearing in process. if you intend to testify and wish to have the board give your testimony evidentiary weight, please stand and say i do. please note: any of the members may speak without taking please stand now do you solemnly swear or affirm the testimony you're about to give will be the whole truth and nothing but the truth? >> i do. >> thank you commissioner president honda and commissioners one keep up the good work item item 5 a jurisdiction request on 139 market street that case has been withdrawn and will not be heard

then on the calendar item number one general public comment the opportunity to address an item within the jurisdiction not on tonight's calendar my general public comment seeing none, item 2 commissioners questions or comments anything commissioners item 3 the consideration of the minutes important january 25, 2017, unless any additions, deletions, or changes. >> i move to adopt. >> my public comment on the minutes. >> then on that motion commissioner lazarus commissioner president honda commissioner wilson and commissioner swig thank you that that item passes. >> item number 4 is a rehearing request the subject property at 1590 sacramento street mitchel is requesting a rehearing the appeal kemp versus

mapping decided january 11th voted 4 to zero with commissioner president honda absent and on the basis that was properly issued the project sponsor is with the construction of a wireless service facility. >> i watched the tape. >> thank you, mr. kemp starting with you 3 minutes to present to the board. >> good evening and welcome. >> i request a rehearing for two reasons. >> i'm sorry citizenship speak up is that better. >> once again with good evening i request a rehearing for two reasons more information that came to my attention on the 10 of january the day before the

board of appeals hearing these two items consisted of the following number one item number 4 in the health conditions seemed to indicate that a device or mechanism would be provided to general public comment if requested permanent it is not what it means what it means none was sure until i got calls the representative on the evening of january 10th explained to me what that really means is that i should call them if i have problems and no device that's fine number one and that's academic because i'm buying my own device and install it and as a memo to the gentleman is not really a little black box with a

red white it is a beige it is number one and number two this is not been addressed in either the mckenzie or the brief from the department of public works that's the whole question of control and monitoring during the operational life of the system when i asked about the installation of this facility i received an e-mail from the department of public works saying i should call extra net a little bit like having someone say call the restaurants and talk with the owner or have his cousins from san rosa call you back and looking at this deeper i

contend from the time the item the facility licenses to the time the license is are you in custody no operational monitoring, control, inspection and no recourse for a simulate citizen that feels he has an issue that needs to be addressed not by calling extra net but the department of health or the department of public works and if they can't explain and should be called a rehearing they can't explain what operational controls they have. >> sir please finish our sentence your time is up. >> then the appeal should be upheld. >> okay. thank you. >> thank you we'll hear from

the permit holder now. >> sir. >> good evening and welcome. >> again. >> outside for verizon we would ask you not grant the rehearing we don't think this is new materials facts or manifest injustice in the decision you made this condition number 4 has been in documents for that application ore 18 months and reflects in the dpw reflects mr. cutting-edge had if time to review those issues and the dpw resealed in any testimony on january 11th raised this issue of mechanism that was used in order to provide ongoing testing and reminded that mr. cutting-edge so you get to have that done it's been used on

facilities and other facilities and at&t there are hundreds of facilities and mr. kemp had an interpretation it is a mechanism that works and bill is here that conducted those tests either through the department or through the consultant or others we feel it is something that serves the city and the department and the condition that was written and there is again, no material fact it is new a new and certainly no manifest injustice. >> i have a question counselor this has been before us 4 times what's the mechanism for the extra net for the general public comment is closed. wants to know what it is. >> they can e-mail dpw they can moma e e-mail or call extra net and third parties will come

with permission and enter into the apartment who wants the testing with the resident present and show him the measurements for the operation of the facility these facilities are operating at low level no systems near close to the fcc guidelines. >> is that only dpw or the department of health public health department. >> i don't know whether dpw has received those kinds of questions but there are other mechanisms for all other wireless facilities in san francisco my resident within 25 feet of antenna that goes to the department of health they are a mechanism with a request to test contact i believe they contact mr. kemp directly.

>> thank you we'll hear from the department now. >> once once again. >> amanda representing public works we're asking the board to deny the rehearing the request on the basis that the request is not based on new facts and circumstances with that with that said, i want to provide two clarifications the request for clarification in his rehearing the request but first is that the appellants ask to the public works and department of health clarify two conditions in the permit the department of health is also in attendance at the hearing the first condition the platelet e meddle wants the mechanism for taking radio frequency measurement from the public to the intent of this condition if requested extra net should packing take reading

within the residents and that is a mechanism in the unique for achieving results there is conditions the appellant wants clarification if extra net it responsible for paying one and ti dollars to the public health department for the intent that the public health should be paid for they're just like 6 to review and determination this application could comply with the public health in earlier 25 this fee is authorized in public works code section 1527. the appellant asks that public works and public health department should explain what the radio frequency they'll make during the term of the permit so the radio frequency mentioned after the approval of the permit

the first is after the installation of wireless facility and the second from the permit holder requests the rule of the permit 10 years and eligible for an additional one year term and what this basically looks like the first reading within thirty business days of installation facility the permit holder musculomust file a statement registered engineer that the facility will comply with the public health department standard and also those 4 for the rule have statements that comply >> if we find the application or the permit didn't meet the 3 requirements or we'll issue the applicant the permit holder niece e fees and revoke the permit if it is not complied

they request a monitoring if dpw and they can contact myself and we don't have it available it is to be done by engineers with calibrated equipment i'll be happy to answer any questions you may have. >> you went through all 3 clarifications. >> pardon me. >> did you run through all 3 clarifications. >> the question the mechanism involved so if someone has a property next time to extra net and want the rh-1 conditions met. >> we put them into contact with the permit holder they contact the company they hired to provide the radio frequency study and do that e-mail or through phone calls i don't hear back under the permit holder i follow-up to make sure that is made.

>> that's the first question and the 10 year permit is that standard for all department of health stuff. >> yeah. >> so like i mean give me another idea massage parlors are those ten years as well. >> perhaps you want to ask dpw dph. >> the question is that a standard practice to issue and 10 year permit from the department of health. >> i'm principle program manager and we have the responsibility of for massage prom we have a case coming before you. >> i'm sure you do do massage to answer your question their annual permits that get renewed annually and the health department has a role to play

the article 25 gives a role to play but the permit is a dph not a public permit. >> i heard 10 years i didn't think that a standard permit for anything is 10 years is there a representative if from filipino is there a dpw permit you guys give for 10 years. >> public works in terms of the permits for renewal their traditional annual but for us the 25 wireless permit is standard 10 years other permits that may have longer durations are a project like a street light improvement project for permanent improvement of the sidewalks or roadways but in terms of the situation encroachment permit that be occupying public

right-of-way don't have a time their longer durations either removed or revoked. >> thank you that's an article 25. >> exactly. >> thank you any public comment on this item? i see no public comment. commissioners. >> if i may a briefly that's a state law requirement for antennas. >> commissioners, the matter is submitted. >> i'm sympathetic to mr. kemp but not heard any new fog that represents manifest injustice. >> i concur the bar for manifest injustice is high the items that mr. kemp has noted in the rehearing the request have all been thoroughly vetted to this process so i would agree with commissioner vice president

fung. >> care to make a motion. >> move to deny the rehearing no new information has been appropriated and manifest injustice has not been dreementd. >> thank you on that motion from the vice president then to deny the request commissioner lazarus commissioner president honda commissioner wilson commissioner swig that motion carries with a vote of 5 to zero. >> item 5 withdrawn and call item 6 raintree 2051 3rd street, llc versus public works of urban forestry the the subject property on third street street with the denial of 2016 a of a tree removal and a denial for removal of 3 street trees start with the appellant 7 minutes to present. >> good evening and welcome. >> good evening thank you,

commissioners appreciate how time this evening on this issue we are naomi's a rick with raintree 2051 3rd street we're the sponsors the project on raintree 2051 3rd street which is a through lot on third street and illinois the project was approved in 2014 and under construction 2, 3, 42014 we came before you for an appeal of the application to remove and replace 3 eucalyptus trees dpw supported it appealed by the neighbors we requested removal and replacement of street trees on those frontages that dpw supported the board uphold the 2016-2017 order allowing us to remorseful them but for 48 inch box the eucalyptus are not the subject of this hearing,

however, the process we've become warn of the conflict in light sidewalks along the frontages that effect our ability to plant the number of trees that was approved this information couldn't have been common it requires feedback from multiple agencies not occurs until the review stage the conflicts uncoasted is a large at at duck a fire main and junction boxes and the port has jurisdiction along illinois street didn't allow utility expansions we work closely with puc and agreed because of the modifications and to return to the misdemeanor the tree planting we submitted a new removal application to dpw they denied and we've appealed we worked with dpw and puc to

identify to options for tree replacement along illinois and third street and asking you to approve that under appeal to allow for the implementation of those two options since the filing of the brief in october additional conflicts with puc and waterline they didn't support the root barriers and above grade barriers so we presented many solutions it is worth noting and dpw did in its belief it is common for briefs to not plant the trees often do to utilize clfltsz we evident up agreeing on two final options as shown - in the projector -

and we believe both are viable final solutions notice they showed a proposed tree plantings as well as several known utility conflicts which i do have a larger copy if necessary but several conflicts along third street and illinois and i can get into more detail on those it is worth noting both options would assume we're responsible for my in lui fees associated with trees we can't plant so first in opposition one our solution at the illinois frontage is the same under both options as a result of transformer and splice box that constrains the footage we ask one tree to be removed we'll plant 4, 408 inch box and 60 inch box along the frontage as

well as a planter strip which will otherwise not be required if we can accommodate those 60 inch box trees that are deemed near specimen trees they're provided a nice pedestrian street along illinois the tree removal along third street frontage has not been one of public controversy and it is calculated as that relates to utilities on third street are federal, state, and local in opposition one a partial relocation of a waterline that runs the length of the property in order to accommodate a clear area from my waterlines that puc requires this will allow is to plant a total of two new 24 inch box trees along third street it is not vetted by puc or other effected utilities but we feel

there is genuine support to explore this requires other puc we're not sure we can accommodate this but in ongoing discussions with puc and other utility providers - in opposition two if one is not achieveable we'll plant the strips along the west side this option provides so the two existing trees to the north will remain and this option provide a landscape buffer for pedestrians within the sidewalk and third street could sure traffic buffers experienced by pedestrians one of the front doors we're very interested in making sure as long-term owners this is a nice frontage for the property 2, 3, 4 conclusions we're awaiting feedback from the utility provider we have enough

information to approve those options key points to consider are first both the options are supported by puc and - second we as a developers are committed to planting the maximum number of trees feasible and rain trees at dpw and pucs discretion we respectfully request the board of appeals amend the permit to allow for those two other people's money as a final noted we request due to the construction schedule that moving forward dpw and puc be given jurisdiction on that matter we anticipate this work will need to be approved over the next 45 days and appreciate the maximum flexibility with respect to the jurisdiction thank you. >> i have a question sir, i mentioned long-term ownership

are you planning on holding. >> this is a rental we'll own in perpetuity. >> in terms of the difference the two trees to the south i guess versus option duo two is that the change that the size of boxes and species in terms of this root bulb is changed. >> in terms of could there be more of the species no in my xraerns the answer a new i can let chris opine we've not studied with respect to the species the species has been out

laid as a box but i do believe that a change in the break downs species will change the count along this frontage. >> thank you mr. buck. >> good evening mr. buck. >> good evening chris buck with uttering public works i'll follow-up the appellants presentation i've got some photos of the site just to refresher everyone memories can i have the overhead? the original subject would be two red iron eucalyptus trees they're significant trees that are trees on private property one 10 feet of public right-of-way and this is the focus of the appeal and the concern among the immediate neighbors on the illinois

frontage the original approval from the board was to approve them on the condition of the project eventually all approvals on the condition that the replacement trees be 48 or 60 inch box size container to be determined by public works so the issue along illinois there are room for 4 trees not 5 that's a change in the permit the total count was not a true focus of the appeal but that is certainly in our permit that's something we wanted to bring to your attention the third street frontage here's a brown photo of the subject trees we number them with the flow of traffic tree 1, 2, 3, 4 those are approved for removal without protest were you not subject to the appeal that

evening there's one tree is too close those liquid amber trees are planted too close together and a fourth tree the removal replacement of 4 no room to plant 4 spatial because of underground utilities the current site looks like this and as you can see that the two existing trees are preserved the goal to preserve two planting sites at least two trees along the third street frontage just a back up a little bit the applicant appellant in this case has been in touch with our department from day one at the first sign of controvertible that was not a regular line under the sidewalk but the main is under this narrow sidewalk they brought if to our attention

4 trees replanting on third street down to two those are in question the puc said no, we can't have those that close to our water main even though those two existing trees are that close as well as a brand new project one block away a water main i don't know that never came to our attention i'll say in this case the appellant has been in contact with us every step of the way a very real possibility that the puc may allow them to locate the water main in the roadway so two trees can be planted along the third street frontage that's our preference other the puc bans the number of tie-ins and wouldn't be necessarily based on preserving the tree sites but a preference of the imp as well

based on the number of times so we have the item before you is a change in the total number of trees that will be planted but also on the third street frontage there really is no way to get a 48 inch box sized tree based on currently conditions that is realistic to try to fit 24 inch trees along third street at this point, i'd like to is that we all projects development projects are subject to in lui fees at the end of the project separate from my removal our code requires 11 trees to be planted every tree can't be planted an in lui fee of fees abnormality of separate tree process at the moment the plan was as approved to plant 9 trees it is

looking closer to replacement or total number of trees to be 4 on illinois, two exist on third street and plus two more a total of 8 trees short 3 trees we'll assess the in lui fees the key reason to be before you the board placed conditions on the permit about 48 and 60 inch box trees and also the number of trees replacement trees wasn't the subject of the hearing but the change before the public and for those two reasons you know we feel the appellant we can only discuss this to come back before you and bring to your attention and see what we can do to problem solve that i like the flexibility i think there is still going to be more there's a lot of moving parts to determine

illinois there is a commitment to plant 60 inch box trees in the last day or two you know maybe we could move it and get a 5 tree but installer like a 36 or whatever i like to say one option we don't typical ask for a jurisdiction but there's a lot of moving parts this particular project sponsor is looking at the possibility and not coming before us and saying oh, by the way, there are problems so looking for flexibility and looking to you to talk through some of the facility issues. >> question can you touch on the project sponsor mentioned planters and yes both the property owner project sponsor and the puc asked about the initial ask above ground and puc

feels we don't want to allow trees above ground they pop out but sometimes because the ongoing drought despite. >> what drought. >> the long term drought prognoses for california remains. >> yeah. what drought. >> the puck - the puc is requiring water that is what they require above ground for the life the tree we're not supportive of above ground planters one idea along third street and that is to require above ground there is no parking on i will all that will be i mean, the chase center going up

across the street will be a heavily traveled walkway i believe if when the center is completed and that's true there are considerations regarding the nature and how much landscaping will fm fit into this space based on the anticipated going out but certainly along illinois this is opportunities to require landscaping we say if you can't plant the 11 trees or whatever you can plant 75 feet of square footage of landscaping and make up for the loss of tree in lui of the assessment fees those are some of the considerations we are talking about. >> thank you, mr. buck you can you answer the same question. >> the species along third street is not an issue that is

more can that waterline be relocated to allow for my trees to get back into third street we'd like to see two trees is an third street if so waterline it move forward 37 inch box trees can be moved if not we'll be require landscaping along third street to changing the species won't impact the number of trees available to be planted. >> two additional points one is an opinion i'm not highly supportive option two in terms of the process the building inspection and fire department stayed the demolition of

building waiting for permits we've had that issue come up a number of times now perhaps we should do the same thing excuse me - our department should do the same thing so the decision making can be more comprehensive. >> it is challenging to carve out and sure that adequate space you know can be provided for replacement trees it certainly more acute when someone been before you the board most projects have no trees to begin with no kind of you know immediate neighbors focused on the number of trees proposed it is something that we there have been improvements over the years used to be revolved at the end of the project and new planning

requires folks to come up first, we review the plans in advance and can provide feedback at the start of their process so if there was a removal and that is contentious we are getting more involved to the front now a requirement that planning dbi will not precede until more the tree questions have been discussed optimally with the tree permit not required just a few years ago that can be done at the end of the project with the full approval is granted and now holding up the project not wanting to talk about the project until the tree issue is resolved even with the number of trees we try to review that i see your point i agree we don't want to be up here we want everyone to be able to commit to planting what they've committed

to planting and looking way to try to make sure that happens with more regularity for landscaping. >> you're in agreement with the project sponsor on allowing the flexibility in terms of the two options. >> yes. our preference certainly to have 2 new street trees planned on third street it is a busy road i think the tenant in the break downs building deserve street trees was on a conference call. >> i'm sure they'll appreciate the screening. >> exactly a busy street sow we are that part of the you know advocates to say to the puc what can be done? the - been to the board of appeals we're not involved unnecessarily and need in information in terms of the illinois street you know losing one tree will

have four trees 48 are 60 inch box trees this is a good compensation for the loss of two those two trees public works approved and didn't believe they were going to be an asset to the site a native oak their from the trees will or that will be long term assets another determination why we're not saying uphold every single condition on this permit but certainly will make sure that as many trees that can be planted will be planted and as large of size as possible i don't know if he get to the point we know there is room until all the utilities and jurisdictions have vetted the case. >> i know this case i don't

know it was you or carla. >> carla led from staff's recommendation and certainly strong sentiment about the lose. >> a quite a few of the numbers of the public it spoke that night. >> thank you, thank you. >> thank you any public comment on this item? okay. seeing none then mr. price anything further to say you have a few minutes. >> oh, yes, a couple of quick comments just initially like to reiterate there have been countless hours spent on this issue by myself and our consultant team and the bureaucracy of urban forestry and puc more recently and there is an intent on behalf of all parties to do the right thing here and more hours we get to insure

that all the departments needs are met we've appreciate very much the time your time and the time that chris and his team put into this issue and we ask that the board approve the modification for the deny and approve into options one and two which will include the one removal of one tree an ill i will and on the third street venue and want to reiterate what chris mentioned as far as jurisdiction i realize that may not be a common request but nicole where construction is often a day to day activity and your you have to remain nimble and constantly uncover issues this is one issue when you open

up the sidewalks their undoubtedly be a condition we're not aware of for that reason want to reiterate our deserve to have the jurisdiction fall under dpw going forward to we could quickly react to any new conditions thank you, again. >> thank you. >> mr. buck anything further. >> no additional feedback just available for questions. >> thank you. >> commissioners, the matter is submitted. >> i'm sorry, i remember this case we have a lot of members that felt strongly hence, the reason for a 48 and 60 inch box at the same time as

my vice president has mentioned we had developers that came to us and intentionally came in at the last minute saying we're not putting in trees on 9 and mission going on over the briefs and hearing the testimony from the department leads me to commend the developer an working with the department as soon as they found out a potential issue so i personally don't have a problem letting them to change and let the department because the trees are in the departments best interest not sure how the commissioners feel about our control to the department. >> i don't know exactly what that means if we approve the permit with the two options it seems to me that is giving them the flexibility to work out what they need to.

>> we're conditioning the permit if it didn't fall within the permit they'll have to come before the board they're asking for the department to have i'm not sure i want to relinquish that much but - >> whether the department finds some in lui determines of strip larpd of some type of to replace it a general public comment first before we start my projects we usually make sure there is a certain know what the utilities are and as part of the initial design you know where your utilities are so that's not always something i buy hazard to be analyzed, however, we're in a situation with remedial force can we find a solution to this. >> i will reiterate that i

don't care for option two. >> i'm prepared to allow the department then to extract what we can out of this. >> my further comment. >> it was - very refreshing to. >> and the developer. >> to hear that both the developer and the department still working closely together proactive proactively initiative and the proactive with regards to the future considerations of what might happen and didn't we don't get that very often so my compliments as well to both working together i have no problem with the recommendations before us.

>> you have a motion you'd like to put forward. >> would you like to try. >> i'll try. >> i'm going to need you to - and we would uphold the denial grant the appeal and overturn the denial. >> make a motion to grant the appeal and condition the permit on the implementation of one or two options as presented by the appellant and the department. >> that would not achieve the request that there be flexibility in case neither of the options workout so one option for you to consider that you continue this case to let that play out and then bring it back quickly from the board would like certainly bring it back quickly and or perhaps a

way to craft the motion to have the discretion to make changes to public works. >> i don't know how my i'll see what my fellow commissioners have to say i'll not have a problem to grant the discretion to the department if necessary other changes. >> i have no problem. >> there is. >> yeah. for the same objectives so - >> okay okay. >> okay? lucky permit holder >> be able to capture that madam director. >> only option two not a copy that have in our records i assume option one is exhibit a to your brief. >> you want to step forward

one or two neither options were in the brief there was changes when the brief was submitted to i - i have copies of both option one and two and i can hand over right now if you want that for the record. >> we need that in the file part of motion i'm understanding that the motion will be to grant the appeal and overturn the department and issue the permit on the condition that either option one or two be adopted as the planting plan i assume in that order and maybe not i mean, if there's discretion. >> i think discretion is fine. >> and then if neither of those options if you shared - if other conditions arises and necessity other discretions this will be the discretion of the department. >> that's correct. >> and the basis for that.

>> on the basis that the plans will meet the desired objectives of both parties will it work. >> (laughter). >> the plan. >> yes. okay. >> on that motion then. >> - >> if i can add a little bit. >> i don't know. >> proposed that we don't leave is to open the determination of opposition is at the direction of department accept the direction of the department. >> that goes without saying didn't it they'll not get their

permits. >> but there is. >> okay. do you want to take out to say that the tack out the reference to the options and . >> no, i'm saying do the two options the final determination and those occurred with the acceptance. >> to clearly state it. >> okay. >> i was thinking they're getting cart blafrn. >> they may windup negotiating something else. >> with that amendment accepted by the motion maker on that motion commissioner vice president fung commissioner president honda commissioner wilson and commissioner swig that motion carries and those two options have been submitted

moving on to item 7 appeal bonforte and leung investments on divisadero street appealing the issuance of 2015 of a letter of determination regarding whether a professional serves as defined in the planning code section is a permitted use in the existing ground floor commercial space in the subject building. >> good evening and welcome. >> i'm the owner thank you guys for hearing our appeal i'm here to appeal reheard a letter of determination we received from the planning department i believe that there is a fundamental error in interpretation in the planning code i'd like to request that the board remove the conditional use for my company give you a little bit of background we're a design

studio in 2009, we began and we don't logo and draft designs in 2010, i was hiring my first employee before i did i rented a space at the current location at divisadero street and the employees walk or bike to work in the break downs neighborhood par 2348d we decided to expand to the neighboring space take over the entirety felt ground floor when the tenants left we had our plans approved by the city and started construction planning reviewed the plans we'll talk about that i'm sure in january of 2016 we actually became aware of a complaint that was made to planning we reached out to start a dialogue in 2016

we received a notice of enforcement that is the dated of construction project waltz completed that this permit was closed since we received the notice of enforcement we work closely so resolve that our experience work together the planting has been great they've only been professional and curious in my interactions the two allegations that came up in the notice of enforcement i wanted to talk about 24 it came up in the break downs brief there are two one we again offer the services to the public and the second was that planning didn't review our change of use or approve our change of use in the planning department brief this came up again, i'm surprised we went through that with the planning department we were working with the notice of enforcement our architect is a here and she can speak to this if you have

questions about the permit approval process and the permits sorry those issues in the notice of enforcement were resolved this can i have the overhead? this is actually an e-mail i received or sorry i sent after we met with them and highlighted here - >> sir, you have a lot of time go ahead and read that i can't. >> i highlighted departments the part we met with the enforcement and basically, it sounded like you guys have no questions about the review process we that was listed in the notice of enforcement but sounds like it was not resolved if it is this case the response from planning was actually this. >> can you bring over the mike,

we, hear. >> sorry about that thank you for follow-up we will have a responded by wednesday morning followed by this e-mail we find in in lui the actions the department thinks the best action to file a conditional use authorization application to legalize the space you occupy to business or professional services this is required per planning code we'll pub talk about that code in a bit as far as we're concerned we went forward with the conditional use authorization it was based on the planning code and not actually nothing in the n o e and not bans those issues in the review of the change of

use plan so when we started the conditional use process i had meetings with different staff and planning i got different interpretations of the planning code at this time and i think was at one point it was a land use i requested a lexy want to walk you through the code we went through the letter of determination this is actually, the planning departments brief can i have the overhead? i'm sorry as you can see we're actually permitted use

746 professional services is a professional use on the first floor the planning department said, yes that is true but there's additional requirements in 746, one through b we've got the ground floor commercial a table called - which i'll jump to that has includes additional requirements the first part i want to point out is an ability b it lists the areas that that employs to not to divisadero street where we are loejd located we point out that the planning department says that's an omission they'll update but

that table one 45.4 that listed the permit use we're actually were not i'm sorry business professional services is not listed there and in that omission the planning department has said we're therefore required to do a conditional use hearing my point i have a couple of points i'll assume 0 we'll have a conditional use requirement but from the beginning this is not an question of code for me this is actually what we did when we reviewed the code and very clear we're a permit use although no one is here your time is up. >> finish that thought. >> we've gone through planning they've reviewed the plans and we will will expect them to bring this up and earlier we were reviewed the code didn't

seem like the interpretation of the code is logical and not match up with the what the code actually says i think that is very clear so we would like to have the board review the letter and as that pertains to my company or our use. >> okay. thank you all have time on rebuttal thank you. >> is your construction finished. >> it is been finished for a year plus now. >> thank you. >> is there anyone here on behalf of the the subject property property owner if not. >> thank you scott sanchez planning department. the the subject property on the draft eirs commercial zoning district previously within at the mc-2 a generic zoning

district and would have been that way since the creation in the 80s in 2012 supervisor initiated the legislation to create this is as a neighborhood commercial district we have in north beach and noah valley and parts of castro and with specific controls unique to draft eirs drifrts the initial legislation that was put forward by then supervisor president breed didn't have the requirement for the ground floor commercial use but through the process commissioner london breed was for the record informed of that and requested that be added to the planning code that's why it is added it

does i know can be confusing because there was a contradiction in the code language in the table is listed in the section it says required ground floor commercial that's because the neighborhood commercial district is a bit broadly this applies to parcels on divisadero that don't front on divisadero that's why not a seed throughout a specifically control for the street it is correct that there is an omission not included in the applicable streets in one 45 point the legislation that is moving forward with the board of supervisors that is very clear from the record it was the intent i think from the table this control applies so that was the basis of letter of determination whether or not

this requirement applies to tell you the truth we believe it does the record is clear the legislative record is clear that's the supervisors intent and that's how it shall be carried forward now a separate issue with the individual use here we first received the complaint about this change of use in the beginning of last year there was a pit stop on the corner and a complaint came in this changed without a permit and we've been seeing a lot of conversions to tech office and i think that was one of the initial concerns working through is trying to learn brown more about the business within the service category or general office we looked at there were recommendations made they've obtained permit building

applications we reviewed that and we have concerns because it appears when staff had reviewed that and bans our records what we input we create a record at the office and put in there it is listed as an office remodel that was a storefront improvement and no change of use was not our staffer looked at the and approved that after that time i don't know it was clarified and initially dated after the approval for the initiative that was changed from retail to office which that was not i believe reviewed by our department this has been raised that the appellant in the break downs past and not provide that answer we don't believe that properly authors the change of use that is a cf c last february after

the complaint was created but before we got to throw the investigation on the use and the appellant has been responsive we appreciate that after being made aware the visitation had offsite visit with the staff and learn the business and filed the conditional use application and shortly after filed the letter of determination request and now before you they dispute the fact that it is required to go to the conditional use process those are the main points i wanted to address you know we appreciate the sponsor has been responsive and look forward to moving through the process undergo the commission hearing it is being required because if so not a professional service is not listed on the table of the uses that are active uses this

is to a conditional use process in the section and that the application they applied for we ask you uphold the letter of determination and then they'll continue with the process to legalize the use i'm available to answer any questions. >> i've got a question and bingo the first. >> can i second. >> i apologize you said the first construction as you look at the statute; right? you said that it was not listed ; right? >> so it is listed in the table for the divisadero commercial district it states it ground floor commercial uses are required and cross-references

additional information and details. >> or the but, but clear in the break downs planning code and the tables for the district it ground floor uses ground floor commercial uses are required. >> where is it listed. >> it is listed in specific districts should be cross referenced in there but omited clear the intention of the board of supervisors this requirement apply and clear from the table this requirement applies from the use table that that district it applies. >> and the amount gut should be construed against - and approving or disapproving. >> construed in the intent of board of supervisors when they passed this legislation. >> it was clear had they

intended that that implicit applies. >> it is usually something that was omitted not presumed it applies; right? >> in this case not omitted from the use tables this is requir required. >> batter up. >> so just to put it in simple language i think i drove by the corner i drive by that corner a lot and familiar with the neighborhood and i've seen the neighborhood over 65 years of my life go from all sorts of directions and now it is probably the best it's a been in a long, long time and it would seem i'm asking you for your interpretation of my view

is that it was the intent of the board of supervisors to really make sure that retail was placed in every storefront along that street because retail would serve the neighborhood the immediate neighborhood and retail would provide vibrancy and street traffic all the good things that bring special dynamic to a neighborhood is that correct? >> absolutely at the beginning of every table they kind of give a brief synopsis of the intent and promoting continuous business. >> on face value given that point of view we see commonly you don't want any business or non-retail at all anymore on that street it is that they may be allowed with going to the conditional

use process and if they can demonstrate they'll not have an adversely impact on the retail frontage i mean it would be cases existing non-conforming building that may not be well suit for retail uses this is an exception process you're right the goal to insure and prompt and protect a vibrant ground floor. >> with all due respect you respect the appellant and very much respected the small business and you've built the business so successfully that is a pretty important corner to you know to the retail vibrancy and the whole spirit if it was a mid block and a 15 or 20 foot you know space that was kind of low key that's a hefty corner that really goes flies in

face of retail not criticizing but supportive of our situation at the same time, we have a loss you know so - what makes me in if point of view that business from my point of view should grow a conditional use shouldn't have been allowed in the break downs first place can i ask how this man a small business owner built it from scratch doing well, i'm assuming and now has built this building out and probably done it nicely how did it get so far. >> i mean - what and i mean, why wasn't is stopped in the first place. >> our staff reviewed did

permit the permit or the description was not listed as a chance of use from retail to office it was listed as a remodel of an existing office use it was clear from retail how you can put that on plans an office remodel no history there would be much confusion and if if was corrected unfortunately corrected from we we can tell after staff had approved that that and clear from the plan that we have a copy in the break downs brief that they crossed off the description and changed the description and dated post approval from the planning department. >> is one to assume that again i don't want to invoke the appellant but you know take a hard view and softer view two

choice a choice of misinformation the appellant was ill-informed by someone that was okay to build there or did the appellant say oh, it was meant for retail but it is a - that's where i want to put my business i'll take my changes. >> i don't know, we'll have to ask the appellant kind of how their went through the thought process and again, the architect is here may have more to add it completely could be unrelated i nodded in the break downs brief this building has a history of violations for short-term rentals going back to 2012 at one point filed a conditional use authorization to legalize we'll recommend disapproval they came into compliance in

preparation for the hearing last week he staffed our enforcement staff could take into account this and make sure they're not out of compliance they'll actually out of compliance and doing short-term rentals that's again, the business owner. >> are they intertwined. >> no, but i don't know if - the appellant got information from the property owner there is certainly we have an issue an ongoing issue with the building at large that it is quite concerning. >> is that possible was misinformed by a property owner that didn't care about upholding the rules. >> i have a question when you talk about legislation and you know this brief was kind of hard

to go through i didn't get it i wrote notes and didn't understand there is public health fingers but everyone is being nice you're a a, in fact, and buckled i think that bobby hit the nail on the head is that the equity or you know when was that addressed london breeds legislation come through and the actual law on the books that. >> it was effective in 2012 and a multi year planning process i think we had our hearing on that when supervisor was in office and in 2013 and didn't complete the board review until the end of 2014 which is when became effective. >> i'm on the old block my old office on divisadero i believe

there is a lot of change metropolitan and car washes going to be gone a lot of retail on that block make sure; right? >> two questions when was the emission noted. >> so the planning department reviewed the permit on i think may 22 is the day we approved that and about four or five days later nodded on the plan the project description was changed from what we can tell not brought back for review no record reviewed after that description was changed. >> actually, i miss stated my question i apologize not your fault the omission that of street in the relevant planning code section. >> you believe that was uncovered as part of 24 process.

>> so that was i mean, if you - a neighborhood planner and you look at here and say has a ground floor use that is clear it is less critical on a separate section that concludes many under and i euphony. >> moved to the board of supervisors to get it part of a much larger piece of changes to the neighborhood commercial district but it would modify with that. >> and my other question is the appellant allowed to continue users it in that fashion until the matters are resolved. >> that's our standard policy

they've been doing so you mention penalties have not been accruing through exhausting this process period of when we filed their application last may they'll complete that process would have been done by now but, yes - and okay. thank you. >> sorry to. >> i've got a question and go ahead. >> the what is michaels pit stop. >> that was a liquor grocery store a general retail formula or retail use. >> the planning code their tables establishes different information in different parts what you indicated was clear it's been a building standard portion whereas the zoning portion didn't have my of the

information is there a reason for this. >> there is the controls apply to narrowly to those properties that front in the divisadero but the divisadero commercial district the table applies is broader some portions the divisadero mtc the required ground floor portion will not apply and a use per the table. >> i understand that but the fact is that you indicate ground floor needs to be commercial there are awnings. >> i understand we've highlighted this to the board of supervisors it has you know been represented as angle issue in other cases that is more straightforward to regulate the use itself but given they want

to treat it more in a refined fashion it is an excellent point to better tie together the codes but not heard anything in the project sponsor, please. >> or the appellant they're saying this is this shouldn't apply to them this issue here they've not said how they relied or given information based on what was in the table based on that i've heard. >> thank you that was my question and thank you commissioner vice president fung the question is as commissioner vice president fung pointed out enforcement from planning is being enforce on a building code not on a planning code. >> this is a planning code requirement it is called under the building standard. >> okay. >> because a i didn't understand that. >> it is a planning code

requirement. >> okay. thank you. >> okay. >> thank you. >> any public comment on this item? i think are you architect ma'am. >> you'll need to speak in the break downs rebuttal opportunity my public comment if not we'll have rebuttal and however you want to use your 3 minutes. >> you have 3 minutes use your times or relinquish part of your time to the architect. >> hi, i'm the project architect for the project so i want to touch on two things can you hand me the table i actually building he's in on-ramps i understand the planning code has you know become concerned with not being able to clear with the tech industry companies the people can walk if and get designs and christmas are cards a car wrap or anything so christmas cards i

mean a number of things 746 says professional services are permit in the break downs divisadero mtc only runs from haight street to 0'farrell on the top too this is professional services is clearly listed as being defined sorry can i have the overhead? >> when you go the table this is a section that says sales and services and retail not professional services when you take the section of the code and the existence what 790 says a commercial use that provides good and/or services directly to the consumer my provide services to t

to the general public comment i'll paraphrase light manufacturing or wholesale for administrative services this is a graphic not light industrial so i still feel and building that his use is fully in conform and about the documents we started the permit process on may 12, 2015, we opened the permit and went to the planning counter and met with a planner i'm sorry i don't know who it was they wanted more details of elevation to show demolition and the construction of changes to the windows and pulled up the use it is on there and my cover page - says right on that it says office model sorry overhead it says office remodel that can be confusing it

says it over here too when you look out the page by page on the floor plans we converted the market space and later when we contact by the planner that was stamped on may 22nd of 2015 the again having the planner looking and siege we're removing the pit stop signs it the - implications we're not making clear to expand into the corner space is a misleading a note about a - in the permit process so and change the use has been cried i don't say that it is

open to a general public comment from a liquor store i believe they're in the same category under the planning code i don't consider that a change of use but the fire department asked us to change during the fire review of the year or f to a b or m to a b not correct but not in the planning code in any way. >> thank you zoning administrator. >> the - >> sure. >> approving or disapproving come to the podium. >> how many people a week from the general public comment walk into our place asking for

christmas cards or my retail use please. we are - it's per week we're similar to an architect that is defined under businesses and professional services that's what i wanted to point out not a stream of people trying to make your place a retail. >> no, but we have gotten neighborhood business morris has taken over that corner and working with the neighborhood association to logo and working with folks to redo the website they walked in and asked us. >> the representation of the business owner with regard to the use of space with business owner give you my information related to any deterrent that

might have deterred you from operating into the space tell me the satiations six. >> we predated the building owner we were there originally with permitted use for our space 295 on the corner and whether michael the owners were they were leaving we were working to expand we approached them a asked them about the space and relied on the architect we did preliminary work and in compliance our full intention to be compliant and if someone said time out we would have stopped and we would have looked at the use and our plans. >> thank you. >> thank you. >> anyone else have my questions. >> you were prepared at one

point to start the process and then why did you stop. >> we - it wasn't clear if we could precede when we met with staff with the conditional use hearing someone met with staff it was a land use on or about and couldn't do a hearing we didn't say an answer on the code itself that's why we did did letter of determination. >> i'm not sure i understand all conditional use are man use issues. >> i can't speak to that. >> (laughter). all right. >> i had a question for the zoning administrator i think you know the breakdown of the usage. >> he has rebuttal. >> i completely forgot scott sanchez planning department maybe just a few items on rebuttal can i have the overhead, please? this is the zoning map of

divisadero mtc so there's the main spine of the divisadero but it branches off like fallon oak a bit deeper there are frontages not subject to this requirement then in regards to the building application i'm looking at the demolition i don't see my notions and it says the architect noticed a remodel just to be clear i think when was presented to our department it is a chance of use that's why we have a planning code and the builders understand we have a refined set of extinctions and this is a change of use from a retail use and the argument i understand that the architect has put

forward about that general retail category that is for uses which are not otherwise defined such as as this a business and professional service the line of argument that the architect has one that was put forward with the formula retail use there is similar language in the formula retail use provisions that has references that catch up all categories this board found that if didn't include all that are listed under the sun this was not the boards intent to include the professional services here in regards to the confusion thought maybe about the use initially one the concerns and questions we had is that a professional and business use are a general office use i think as demonstrated from the e-mail from staff we advised them to file the conditional use authorization they can move

forward with that think of that probably met the minimum standards for the business and professional services recommended the used to be to us but have the conditional use process and by the planning department whether or not they felt that was what proper use for in location maybe that's part of confusion but in the letter of determination they didn't seek and letter of determination of who the use was a business and professional service use bans a letter of determination about who a business and professional service use been permitted or conditionally be permitted based on this required active commercial use requirement so i'm available to answer any questions. >> yes. one minute. >> take a break for a second if i need to. >> okay.

>> i forgot to ask if my of the public -

>> so i have a question mr. sanchez just looking at the briefs i didn't see really the highlighted portion of plan but coming to the current and they're doing a remodel and it says mike's and joe's liquor store it shows a liquor store in comparison didn't that raise a flag for a planner. >> they didn't. >> oh. >> it shows this liquor store.

>> no motion on the plans that was listed as an office remodel it is - i mean a fair point there is a photo. >> well, that's what i'm getting at a liquor store and says mike's liquor store and as built reflects a liquor store rather than a professional business and professional services. >> it is shown on the as lists conditions no reference to retail of new kind. >> i agree a picture shows a thousand words. >> the planner was relying on what was written. >> there is a valeted argument why the planning department planning code should rely on what was submitted and ask for questions and never approve anything over-the-counter it was a high volume and can be at

times working at the countered and this is imperative the project sponsor provide clear and accurate fox we can touch when prepare catch when people are representing not accurate that was approved as an office model. >> mr. sanchez this was an over-the-counter permit. >> yes. >> okay is this similar to the supply store the issue one it was a mission district where dave wanted to put a child's educations program in a storefront retail and was not allowed it's not allowed and put the pirate supply store in the front and the kids education in the back. >> that's what all the

pictures of the tools. >> there's been cases where the requirement calls for the first 25 feet to be active use so proposed to have a non-use that don't comply at the back and the code allows that. >> so my point is this is really i think this is very important to point out it is. >> do you have a question. >> okay. what's the question because - >> go ahead i'll wait for a conversation. >> go ahead, please. >> i'm not - >> go ahead. >> does the fact that they were there predivisadero change from a mtc have my impact on the permit in the sense there expanding into another space but

they already had quite a bit of space. >> their subject to the current controls. >> i'll wait for deliberation. >> deliberate. >> thank you commissioners, the matter is submitted. >> and again, just a reminder a letter of determination not the permit. >> this is about a letter of determination. >> so let me continue i think that is really i'm tremendously sympathetic to someone starting a small business and trermgs sympathetic to someone who is successful and sympathetic to someone that spent money building out a space and then gets a big surprise, however, i think that is incumbent on the

board to be responsible to the legislation that is there and responsible to the spirit of that legislation which demands to retain the retail character of those specific areas if we are easy he agree with nevertheless, i say take the side of da on this and if we are overly sympathetic i'd like to be it then i think we undermine the spirit of the legislation in place and we should require that that it go to planning for a change of use an appropriate change of use request so i kind of in the deny the appeal mode.

>> either - and as is director mentions this is a letter of determination an l l d the question whether everything in his rational were in agreement with you know, i think if you look at what bodies have done this post rationaltion it is clear right away so if i look at the 3 pertinent portions the planning code forms the decision the two more critical was dealing with zoning allows business and professional uses the one portion that deals with building standards didn't allow and so if i was to look at it in

light of this i don't see intent and if they want to change it they should change it but in terms of what the code sections says not clear in my mind to anyone on the public and by the way, the architect your definition of land use are not with the planning code says so i think that is pretty well defined so but in terms of the whether i agree with the l l d i don't as. >> as i stated before or during we see a lot of briefs it is i'll material to go through this was difficult not that it was lengthy or long

brief just as my fellow commissioners said that was unclear which way it was to fall on and to have it on intent only i think that harm to the public as stated if that's the intent it should be on the website and in writing tonight i could go either way but leaning on you know there's no statute that says their permitted or entitled to go to the former location even if their, their prior there was a good attempt on both parts and you know my thing a picture says a thousand words if i see a picture of a liquor store if it impacts like a duck it is a duck

not a cat i think there is a gray area and is that worth to put the permit holder into that area i'm familiar with the neighborhood. >> it looks like a duck and quacks like a duck if i'm at the considerate and see office renovation. >> if you show you a fare ray and put the word pinto it is not a fearingy. >> you have to find the abuse of discretion and make a decision. >> i don't find here a abuse of discretion. >> someone want to make a

motion. >> letter of determination be i find no error or abuse of discretion i'll start with that house is that. >> boom. >> want to make your comments. >> we have a motion from commissioner swig to deny the appeal and up to date the letter of determination on the basis the zoning administrator didn't error or abuse his discretion. >> that motion commissioner vice president fung no. >> commissioner lazarus commissioner president honda no then commissioner wilson. >> no okay. so with the vote of 2 to 3 that that motion carries absent my further motion the letter of determination will be upheld by that proclamation of law. >> i'll make a motion it will probably fail i'm going to move to grant the

appeal on the basis that the da erred and that with respect to the critical portions of the planning code which is the table - 746 and the corresponding section 14. >> so the motion then to grant the appeal and overturn the letter of determination go on the basis the zoning administrator erred in the interpretation of those two okay. >> interpretation of planning code table 746 and the corresponding section 145. >> that's correct.

>> on that motion by the vice president commissioner lazarus. >> no commissioner president honda. >> commissioner wilson no commissioner swig. >> no. >> that motion fails with a vote of 2 to 3 again baring my further motion the election is upheld by the determination of law no other motion no other there's no further business before the board adjourned. >> we're adjourned next to

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