>> [gavel] >> welcome to the january 31, 2018 meeting of the san francisco board of appeals. the presiding officer this evening is board president hon darryl honda joined by frank fung, commissioner lazarus, and commission eer wilson and commissioner swig. >> we have the attorney and the board's legal assistant, and i am cynthia goldstein. we will be joined shortly by scott sanchez who is the zoning administrator who will be representing the planning department and the planning commission. the board requests you turn off cell phones and electronic devices and carry on conversations in the hallway. the rule of presentation is as follows. there are 7 minutes to present the case and 3 minutes for rebuttal. people affiliated with the parties must include the comments within the seven or

three minute periods. members not affiliated have 3 minutes to address the board but no eare rebuttal. we ask that you provide us a speaker card or business card if you are willing so that board staff can have the accurate spelling of your name. we have paper cards to the left side of the podium for your use. we welcome feedback and customer surveys as well. if you have a question about the board's rules, speak to board staff during a break or come to the office or give us a call. we're located at 1650 mission street in room 304. this meeting is broadcast live on sfgov tv and will be rebroadcast on friday at 4:00 on channel 26 and dvds of this meeting are available for purchase from sfgovtv. we will now swear in or affirm all those who intend to testify. please note any member of the public may speak without taking the oath under the sunshine

ordinance. if you intend to testify and have the board give your testimony evidentiary weight, please stand. raise your right hand and say i do when you have been sworn in or affirmed. you do solemnly swear or affirm that the testimony you are about to give will be the truth, whole truth, and nothing but the truth. thank you very much. commissioner, we have one housekeeping item, item 5. we received a withdrawal request for that item, and we will not hear it. this is the jurisdiction request regarding an alteration permit at 2101 mission street. item one is general public comment. is there anyone here who would like to speak on a matter within the board's subject matter jurisdiction but not on tonight's calendar? seeing none, commissioner, item two is the election of officers. the board's rules state that elections take place this time each year. and of course, i want to take this opportunity, first, to thank president honda for the

lath two years pfb -- for the last two years. you have been so responsive and supportive and i appreciate that and the opportunity we had to work together. thank you for your service and support. starting with the office of president, are there any members of the board who would like to nominate a colleague or themselves for this office? >> an i would like to nominate vice president frank fung.i woue president frank fung. are there any other nominations? i will take that as a motion. any public comment on this motion to elevate vice president fung? vice president fung, do you accept that nomination, i should ask? >> i do. >> very good. >> so we have a motion from current president honda to elevate vice president fung to the office of president. on that motion, i will start with the nominee himself. >> yes. >> thank you.

commissioner lazarus. >> absolutely. commissioner wilson. >> hmm. does it take four or three votes? i'm going to go on a limb here. yes. >> commissioner swig? >> aye. >> great. the motion passes with a unanimous vote. congratulations, president fung. >> thank you. we then need to move on to the office of vice president. are there any nominations for this office? >> an i would like to nominate commissioner rick swig. >> okay.i would like to nominat commissioner rick swig. >> okay. do you accept that nomination? >> with pleasure. >> any other nomination for office of vice president? >> on commissioner honda's motion to nominate rick swig as the vice president, any public comment? thank you. okay. president fung. >> aye. >> commissioner lazarus.

>> aye. >> commissioner wilson. >> aye. >> commissioner swig. >> i'll accept. >> thank you very much and congratulations to you both. >> thank you. the next item is item three is commissioner comments and questions. anything, commissioners? >> just to thank commissioner honda for his service, and also thank commissioner swig for accepting the vice. >> the vice. >> the vice. >> and i, too, would like to -- the last two years has been nice working with our director has been just fantastic and make this is board so efficient. it is going to be very sad in a few months we will have a new director. but the last two years has been pleasant. and in this body that i work with, all my fellow commissioners are absolutely awesome. including you, too, brad. thank you. >> i agree, kudos to our executive director, although i

would be remiss with my fellow commissioners if i did not tell you i have a plan to clone her. >> i'm keeping myself. >> senator is there any public comment on item three?is there on item three? seeing none, we move on to item four. >> the adoption of minutes. >> any additions, modifications or corrections? >> nope. >> if not, i will entertain a motion to accept. >> so moved. >> thank you. any public comment on the minutes? >> okay. seeing none, on commissioner lazarus' motion to accept the minutes. president fung. >> aye. >> a commissioner honda. >> aye. >> commissioner wilson. >> aye. >> commissioner swig. >> aye. item five is withdrawn and we will move on to item six.

appeal 17-158 patricia hayes versus the zoning administrator at 21 brompton avenue appealing the issuance on september 1, 2017, with the letter of determination regarding whether the vacant lot at the subject property currently being used for parking and could be developed with a surface paid public parking lot. hearing was held on december 13. it is on for further consideration today. the board voted 3-2 with commissioner lazarus and commissioner wilson dissenting to grant the appeal and overturn the letter of determination on the basis the zoning administrator erred because the legal nonconforming use was established for parking and the use of the property as a paid parking lot after it was sold by the city to the apell lanlts. lacking four votes needed to pass, the motion failed and upon further motion, they voted 5-0 to continue this matter to tonight to allow the parties to

submit additional information to the board related to the city's authorized use of the subject property. commissioner, president fung, we can give each side an additional three minutes. >> that will be fine. >> we can hear three more minutes starting with the appellant. >> okay. on behalf of the hayes family, we thank the members of the appeals board for the additional opportunity to review and consider the appeal for the property at 21 brompton in the glenn park village. we also thank the zoning administrator and the planning team for their guidance and advice over the past year. again, my name is patricia hayes and i am here tonight with my brother dan and sisters and our mother is watching on tv. i would like to read the brief that we submitted last week for the record, and it includes some additional comments as well.

since we met on december 13, 2017, we've received and reviewed the city's historical files for our property at 21 brompton avenue. a memorandum drafted be i the city planning department in june of 71 discussed the potential uses of 21 brompton. the memorandum cited the use at the time as unauthorized parking, and in a subsequent memo from the then planning director in december of 71, he stated its use as informal free parking lot. even though it was zoned as nct-nrh2. there was also a report submitted by the city planning commission in march of 1970 that stated the remainder, which was our lot, should be reserved for a public parking lot under the city's neighborhood parking program. we know that the parking authority at that time did not show interest in doing so. so we do know that the city and our family has continuously used

the property for parking for nearly half a century. we do understand from the board that there does not appear to be a legal basis to overturn the zoning administrator's decision to allow for paid parking, but we continue to believe that the zoning administrator erred in his decision. in his letter dated september 1, 2017, he states that although evidence demonstrates that the property has been used for pa parking since the 70s, it was never permitted as a public parking lot. we assert that it was both implicitly and explicitly permitted. the city used it for parking, and cited the parking in several published planning documents. the planning staff argumented that the documents were simply stating the current use of the property and not as any legal description. our intent and effort since we purchased the property is to find a prague t maic -- a pragmatic, workable approach for the parking needs to monetize

and clean the area to yield a better lit and safer, secure area in the neighborhood. this would allow us to work sooner towards the longer term development plan that would incorporate some parking. we focused on the facts and history of the property. it's not about a feel-good story of a san francisco family clinging to nostalgic family property. we have spent a lot of time, effort, and expenses to explore options that would benefit not just our family but the community, merchant, and city planning department goals. in some ways it would have been easier after we purchased the property last year to close it off and leave it sometime down the road, maybe the next generation of family to develop. but the reality is we know the adverse impact that this would create in our community, and i would think most people would be shocked that it's even a private property. they think it's public parking. we understand from the zoning administrator that we can pursue a conditional use permit for

parking on the nct portion, but there is no legal mechanism to allow conditional use on the rh2 portion. and we wish to emphasize that there is no discernible boundary line from where the nct and rh2 piece meet. if the board cannot overturn the zoning administrator's decision, and then we request that the board recommend that the zoning administrator or planning director use the administrative discretion or by temporary order to allow us to proceed with the conditional use permit for the rh2 portion of the lot. so we can incorporate both parts -- >> i need you to wrap up. >> so we believe this is a unique situation that requires a common sense approach. there needs to be some flexibility in discretion in finding a workable solution. we live in the most innovative city in the world and it is not just the private sector but extends to the public government as well that we urge that the board and planning use some

administrative flexibility to proceed with paid parking. without it we can't continue the way it is. and we have had break-ins. thank you for your time. >> commissioner, any comments or questions with ms. hayes? >> i had a question. where we left this is were you able to do any research into any documentation from the city? was there, as an example, the issue for the request of proposal on the sale of the lot. anything like that? >> no. the one i referred to was from the planning -- the then planning director that just stated its use at the time as informal free park iing, and in

the same memo they referred to a report submitted be i the planning commission at the time that did state the lot or our portion 21 brompton should be reserved for the city parking lot under the zoning, and that is what we found. >> u a thank you. >> mr. sanchez. >> thank you. congratulations, president fung and vice president swig. apologies i wasn't here at the last item. when reviewing the letter of determination request, it did approach it and review the historical information. is there any way that this is possibly a legal use under the planning code? and that was what i tried to find. unfortunately, what i did find in the records and the knowledge that i have under the planning code in effect at that time is

there was no authorization for this. back in the early 60s this was developed with homes on this block in the early 60s. they sought a p.u.d., a planned unit development, to reconfigure those and i a lou for the sale of portions of the properties to widen bosworth. there were actually homes on this block that were demolished as a result of this, and subsequent to that, the lots became vacant. at that time the property was zoned c2 and r2, and there is a very clear boundary line that shows on the planning and zoning map which portion is zoned which. at that time a parking lot would have required a minimal conditional use authorization. there is no record of conditional use authorization. in 1971 when there was discussion about the sale of the portion and put on the overhead. this is a report from the summer -- can i have the overhead

please? the overhead. the overhead. it does state that the parking authority does not see need to develop subject city owned lot for parking and unauthorized parking and then there was the referenced letter stating again that it was not developed by the city or had not been developed for informal parking. in 1974 there was an environmental application as part of the sale, and also looking at the proposed residential uses on the property and that described the present use of the site as vacant, at the bottom you can see present use of site vacant. and there were photos accompanying that request. i have on the overhead showing

the use of it. it was -- there were cars there, but also didn't have wheels and didn't seem to be used much as parking. beginning in 1978, the use of public parking wouldn't have been allowed and since that time it wouldn't have been allowed. private parking lot is allowed with conditional use authorization, but not public parking and the residentially soerned portion of the lot. -- the residentially zoned portion of the lot. i am available for any questions. >> questions? >> sure. so it seemed that the choices here are to consider, one, how to advise the owner of the lot to get this done legally, and i'm not sure i am still hazy on whether this body can do that. and two, just fence off the

place to build residential. and how would they go about this. and it serves the community and is a busy parking lot and break-ins and use and the residual impact and people do nasty things, but what is the process if -- and we'll have to discuss our legal options here, whether we can do this or not, or override you and do it. what is the other option for the owner to legalize this property as a private paid parking lot? >> so just the fact that it is going from something that may be informal to a paid public lot would be a change of use under

the planning code. what has been there for some decades and i believe that the current owners have had some ownership involvement or interest in the property for some time for a number of decades from what i can see from the records. they would need to rezone the property. keep in mind, too, this is not an enforcement action that we are bringing forth as part of the planning department. which is an application sought to make physical improvements to the site, to pave the site, stripe it, to put in machines to collect money. >> what is that unless you do it legally? and so it's no good unless you can do it legally. >> but it would need a rezoning. they do want to make substantial improvements to the property that would use it and very formalize the use as parking, and i think some of the commissioners raised at the last hearing what does that do to the development or future development of the site? this has been proposed for residential development since

the 70s. and since this environmental review in the early 70s, but has not yet been used. it's been used i ges guess as informal parking lot, but when we approve a parking lot, how often do they get converted to residential use? it does occur -- >> although very long process through the planning department. >> but it does -- does it become less likely or more likely it gets developed if it converted to paid parking? i can't say. we would like to say this developed into residential as soon as possible. that would be in everyone's interest in fulfilling the requirements of the planning code. >> what is the path of least resistance? sh is this going to the board of supes and getting theis this supes and getting the district supervisor to give it continuity with the land and the other part

of the land that already seems to be titled for this? >> an it could be a rezoning. that may not make the most sense becausesensebecaubecauseit coul. that may not make the most sensbecauseit could be a rezoni. that may not make the most sensbecauebecausesense because the properties closer are all residential. i don't know that converting this to all commercial zoning would be the best solution, but some planning code, could be a text amendment that does allow for the property to be converted to public parking lot even though it is zoned residential. >> once you push over that dm domino and get that done, let's say, aened 10 years from now family finally wants to build that apartment complex, what is the complexity, every pun intended, about reversing that situation or is that bundled

into a residential parking lot with paid parking? >> it wouldn't effect anything under the planning code. certainly we prefer and the zoning generally prefers to be residential uses and whether this is raised at the last hearing and if there is going to be community concern over the h loss of the parking. whether that would be more of a concern or issue raised by the public, but in terms of planning, no, that wouldn't change anything under the planning code. if you have a good income stream from the property, it may be less likely that you would seek to convert that to residential, but certainly there are -- we do see parking lots converted to residential. >> so the closer question is, is the path of least resistance as we're fooling around, not fooling around, sorry, but as

we're considering this opportunity presented to us tonight, is the path of least resistance rather than us adjudicating on this and kicking it back and recommending that supervisor sheehy take this and get it done? >> yes, i think that is the appropriate way to address the planning code compliance issues. >> thanks. >> questions? >> i have a couple, scott. just to confirm, the original zoning c2 and r2, are they exactly in correlation with the current zoning in terms of the property for nct and rh1? >> yes t -- >> the boundaries are in the same location. >> boundaries are the same. the rezoning that you're talking about is applicable to the rh

portion. >> correct. >> they would need to rezone the rh2 portion of the lot, and it may be a planning code amendment that i a lous for conditional use authorization to be sought for public parking lots in very limited circumstances. or you could say if you are in rh2 portion adjacent to nct zone portion that you can seek conditional use authorization. there are ways to make it very tailored so it is not widely applicable. >> not quite accessory, is it? >> no, it's not accessory parking. a rezoning process normally takes at least two years unless it's done by the legislative branch of the city.

by the time they go through all the steps and through planning and board of supervisors, it is probably at least two years. >> we've seen rezonings occur in a shorter time. what i would imagine would be a text amendment, not a rezoning, like a -- not like a mapping change which does ease the process. it reduces notification requirements if you do text amendment rather than rezoning and remapping. >> what is the possibility of a temporary use? >> this would not be specified as an allowed temporary use under the current provisions of section 205 of the planning code which govern temporary uses. the parking lot wouldn't be allowed as a temporary use. >> we did that for the sign one time. >> for? >> for the union bank? >> the headquarters sign downtown. >> yeah, that was an action on a building permit as well that we had issued an error and sought

rectification and the board upheld the determination that it needed to be revoked but with a time limit. >> with a time limit. >> thank you. >> thank you. is there any public comment on this item? mr. barnes, did you have something? good evening, members of the board of appeals. bill barnes on behalf of the city straadministrator. since the last meeting, we were asked to look at time of sale whether there was any indication in the file. we pulled the documents from 1971 and 1974 when the board acted, and the memo that was referenced by ms. hayes was written by then planning director alan jacobs describing it as an informal free lot. we can't speak to whether that was authorized at the time by

planning, but from the real estate department's perspective, that was the issue. it proceeded to the finance committee which discussed at some length whether or not to buy it for parking and bart was being built at the time and bart declined. when you saw surplus property as members know, you have to offer it to other public agencies to see if they are interested in the acquisition of that property. the real estate division offered it to bart, to others, and the resources agency at the state level and they said we're not interested. at the time other real estate divisions sold it through the adjacent property owner which was mr. hayes. we do have within the file and within the memo that was sent to the planning commission some evidence that it was used and informal parking at the time. whether that use was authorized or not, we wouldn't have those records. that would be the planning department. but to the extent that the public paid attention that the property was disposed of through the board of supervisors, up for sale, in 1974, and that was the condition that we found at least in the division of real estate's records.

>> were you able to find a notice for sale? >> an it appears that the transaction wasn't -- real estate often sells property to the adjacent property owner, so many times in the city where there is a remainder on parcel, and what happened in this instance was that real estate set a minimum price of $30,000 was the price at the time that they thought the property was worth. and that was the price that it was appraised and comps in the files and the board the of supervisors approved the sale. because the sale was too an adjacent property owner, there wasn't the same kind of competitive solicitation in the rfq that you might have on something else because the value would be greater to an adjacent owner. real estate routinely does that. that is in the record. it was appraised at fair market value and sold for that price. >> did you have any information on the the supervisors' action? >> so in the file, the director of property was wallace wartman

and handwritten notes that described the discussion at the board of supervisors. the real estate division came forward to the finance committee of the board and asked them for their recommendation to sell it. the committee at the time continued the item because they said that they wanted more information on parking. so on august 14, the finance committee would not approve the sale. august 27, the committee clerk set it for another hearing. on august 30 of 1974, there was discussion or real estate said they would not present and then on september 10 of 1974, it was approved by the board of supervisors. there was within the notes of real estate staff at the time that there was a delay at the board as they discussed the parking issue, but it wasn't in enough detail for me to offer anything else except to say that bart was contacted to say are you interested in purchasing this because it was adjacent to the bart station. and that is what's in the file. that's all i've got.

>> an any other public comments? seeing none, commissioners, the matter is submitted. >> who would like to start? >> i think if we keep on putting band-aids on this without clarification, then it will be a hardship for all parties. i'm sympathetic to the property owner, and i think the property owner should be able to maintain a parking lot in a paid format as they desire, but the situation will be will always be clouded and clarified and zoned correctly. i believe that it should be clarified and zoned correctly especially in consideration potential for it to be redevelop

ed with the residential as the property owner intends. i would like to push it in that direction rather than trying to stick a band-aid on it. i don't know if i am confusing the issue or not, but that is the vision that i would like to see how if my fellow commissioners agree, and then figure out a way with the appropriate action to take with recommendation to the property owner. >> i am in sort of agreement with that. i approach the motion previously and the other issue because this is l.o.d. and it is not a full entitlement. and acting upon what we're doing would only reverse what the

zoning administrator said. it doesn't necessarily relate to all the other entitlements that would be coming in place. or would have to come in place. >> sorry. and further more, listening to the zoning administrator, it doesn't seem like the fix is major surgery. it seems like it's a reasonable adjustment, and an amendment as opposed to a whole change of zoning ploy that would take years and a lot of heart ache. that is why i know it's -- probably a little painful to hear from as a quick -- in lieu of a quicker fix, maybe, but i think this is the best fix. and it won't be that painful. >> i guess all i would add is i want to stay within our purview

and i think what is in front of us is a letter of determination and that is what we have to opine on and i believe there are a few options that have been laid out tonight for the appella appellant. >> is there a motion? >> i would if i knew how to make it. go ahead. go ahead, mr. president, if you want to. >> well, to be fairly straightforward, move to deny the appeal on the basis that the zoning administrator neither erred nor abused his authority in issues the letter of determination. >> on that motion, then, from commissioner lazarus to deny the appeal, and uphold the letter of determination on the basis that the zoning administrator did not err or abuse his authority. president fung.

>> no. >> commissioner honda. >> no. >> commissioner wilson. >> the question again? >> to deny the appeal and uphold the letter of determination on the basis the sdchza did not ab or err his december krigs. >> how many -- distropical depression. >> three votes are need edthred. >> vice president swig. >> two votes in favor and three opposed. that motion fails. lacking any other motion, the letter of determination would be upheld by operation of law. president fung, should we move on, or is there another motion?

>> we'll need to move on. >> okay. the letter of determination is upheld by default. that is the outcome. thank you. so item six is a closed session for public employee appointment and discussion. and number 7, i'm sorry. thank you. you're so on it. the first part of that is to take public comment on all matters pertaining to the closed session including public comment on whether to hold the item in closed session. so is there any public comment on item number 7? okay. seeing none, then commissioners, do you need to entertain a vote on whether to hold a closed session pursuant to california government code 54957 and san francisco administrative code

67.10b. okay. thank you. so we have a motion from commissioner lazarus to hold a closed session. on that motion, president fung. >> aye. >> commissioner honda. >> aye. >> commissioner wilson. >> aye. >> vice president swig. >> aye. >> okay. so we are going to go into closed session. we do need to clear the room except for those people who are intended to be here, and then the audience is heather johnson from the department of human resources who we have invited to attend. >> and -- >> we are reconvening in open session for the board of appeals january 31, 2018, and we need to

disclose any or all sessions held in closed session pursuant to code. >> move not to disclose. >> motion from commissioner lazarus to not disclose. on that motion, president fung. >> aye. >> a commissioner honda. >> aye. >> a commissioner wilson. >> aye. >> vice president swig. >> aye. thank you. that motion passes. nothing to report on any action taken, so we are done with the closed session, item 7. president fung, there is no other business before the board tonight. >> this meeting is adjourned. [gavel] .

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