>> good evening. welcome to the march 7, 2018 meeting of the board of appeals. frank fung will preside, joined by rick swig, ann lazarus, bobby wilson and darryl honda. brad rusty, deputy city attorney, will provide the board

with legal advice. at the controls, process clerk, alex longawan. and we'll be joined by departments. corey teague here representing planning commission and department. and we expect to be joined shortly by joseph duffy, representing the department of building inspection. the board requests that you turn off our silence all phones or electronic devices so they do not disturb the proceedings and you carry on conversations in the hallways. 7 minutes to present the case and 3 minutes for rebuttal. people affiliated with the parties must be contained in the 7 or 3 minutes. not affiliated parties have 3 minutes to address the board, no rebuttal. we ask that you speak into the

microphone. to assist the board you are asked but not required to submit a speaker card or business card and we have speaker cards for your use the board welcomes your comments and suggestion and we have customer satisfaction surveys on the podium as well. if you have questions about request agree hearing, board's rules, speaks to staff during a break or after the meeting. we're at 1650 mission street, room 304. this is meeting is broadcast live on sf gov tv. and rebroadcast on friday and dvds are available for purchase. now we'll swear in or affirm all those that intend to testify. please note that any member of the public may speak without taking an oath pursuant to their rights under the sunshine ordinance. if you intend to testify at any

of tonight's proceedings and wish to have the board give your testimony evidentiary weight, stand if you're able, raise your right hand and say i do after you have been sworn in or affirmed. if you can please stand now. do you 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. president fung, commissioners, two housekeeping items. item 10 has been dismissed. this is 18-004, regarding an alteration permit at 3932 26th street. item 11 has been withdrawn. this is 17-185 regarding the denial of a noise variance at 365 main street. neither of these items will be heard tonight. we'll start then with item

number one, which is general public comment. this is for anyone here that would like to address the board on a matter of the board's jurisdiction but not on tonight's calendar. is there any general public comment? >> good evening, commissioners, president fung. i want to give you an update that i did submit an application on line with the arts commission. it only asked for my name and a phone number or email address and a place where the craft was produced. i provided that information. i make stuff early in the morning in a storage facility. i'm not doing business there. i don't live there. and there are privacy laws in

california. the arts commission called up staff at this storage facility, they're not at liberty to say who is a tenant there or not. they're not active law enforcement and it's not under warrant. so i'm asking, again, that the board take jurisdiction on this matter. i'm not completely sure how to write a jurisdiction request. i'll do my best. i will do what i can. but i think the arts commission with the aid of margaret bumgarner is fabricating information, and they're wasting taxpayers' dollars and their time. and there is no legitimate reason for why they're doing this. i do not know any other applicant that's gone through the trials and tribulations that i have. so i will be writing the request and maybe one day when i'm in a

wheelchair we'll get this sorted out. >> mr. longway, can you check with sf gov tv to see if we're being broadcast? the tag isn't showing or the closed captioning. there's the tag. we're good. okay. so we'll move on to item 2, commissioner comments and questions? >> i would like to congratulate my executive director on commendation and award that she received for 30 years of outstanding service to the city of san francisco. her human rights tenure was commendable as well as here. >> thank you very much. [applause] >> thank you. anything else, commissioners? any public comment? okay. next item is the consideration of the my its of the february 28, 2018, meeting.

>> any corrections or additions? >> no. motion to accept? >> so moved. >> thank you. any public comment open the minutes? seeing none, we have a motion from commissioner honda to adopt the minutes. on that motion, president fung? >> vice president fung: aye commissioner lazarus? >> commissioner lazarus: aye. >> commissioner swig: commissioner swig? >> commissioner swig: aye. >> commissioner wilson: aye. >> subject property 473 haight street, brian brooks asking that the board take jurisdiction over an amendment to a medical cannabis dispensary permit. the permit holder is miparc doing business as sparc. it temporary amends the

operator's medical cannabis dispensary permit by authorizing the permit holder to sell adult seuss cannabis and cannabis products to individuals 21 years of age and over at the permitted site. we'll start with the requester. >> good evening. and -- >> just to remind you, there are 3 minutes. >> i understand. can i get the overhead? good evening, commissioners. i've been here a few times about this issue. sadly, i'm hear again. i received this notice to my residence stating that the operation at 473 haight street was able to sell recreational marijuana, moving away from selling just m.c.d. or medical

cannabis. once i was given this letter, i did my research and tried to find what exactly was issued. in the letter, it stated that they have the proper permits, and, again, i don't want to necessarily reread this whole thing that everyone has -- excuse me. i am requesting that this be granted because information from the city, from operators at 473 haight street, obviscated the fact that a permit was issued. and it's not a permit. it's an amendment to a permit. and so based on this, i request that i be able to submit an appeal on this temporary permit.

i'm just one resident of many in the lower haight that we all voted -- or some people voted and some didn't, you voted to have medical cannabis in the neighborhood. it's here. i think this goes beyond what the intent is for that permit or at least the amendment to a permit, which, again, the office of cannabis had no idea or couldn't answer my questions about a permit or amendment to permit. the health department never returned any emails or calls. so i was unable to meet this deadline. i gave 2 seconds back. thank you. >> thank you. >> permit holder? >> thank you. good evening, president honda

and members of the board. on behalf sparc, as you may recall, and the requestor acknowledges, this is our 7th or 8th hearing before you on this property. there are no new issues or concerns raised by this appeal. the request is very specific. the request can be granted only where the board finds extraordinary cases where the board finds that the city intentionally or inadvertently caused the requestor to be late in filing the appeal. there the standard isn't met. typically, the city provides notification to neighborhoods of the issuance that notice is required by code. jurisdiction requests are property if an error was made in

notification and neighbors didn't know about the appeal. and, therefore, didn't have an opportunity to file. here no such notification was required. neither the city or sparc had any such violation. nothing was done to prevent the requestor from filing the appeal. the reason for that goes to the nature of the permit. it's a temporary permit of the existing m.c.d. permit. it's valid for only 120 days. when the board of supervisors was adopting the cannabis ordinances, they had to find a way to authorize short-term sales of recreational cannabis while retailers go through the process of applying for permanent authorizations. the solution was the temporary amendments. it was not anticipated that the authorizations would be appealable or appealed because they're only temporary and the

board understood that permanent permits would be subject to appeals. and that's the case here. sparc is in the process of applying for its permanent permits. the requester acknowledges that he was aware of sparc selling recreational cannabis. the email was sent one hour before the deadline and nicole responded immediately. there was nothing more than the city could have done to help him understand the issuance of the permit. even if the appeal is considered, it has no substantive merit, as we pointed out. m.c.d. is grand fathered from locational requirements in the code. and it raises no concerns about sparc's allegations, no

allegations of any complaints against the operations. so for all these reasons, we urge the board to deny the request. thank you. >> and i forgot to make my disclosure. i wish to disclose that i'm a partner in a project that hired rubin and juneaz. and their appearance will have no affect on my decision. >> we can hear from the department now. i don't know if ms. elliott is going to speak or someone from public health is here to speak. >> you might as well speak. get used to it. >> i look forward to spending my wednesdays with you. nicole elliott, director of the office of medical cannabis. i didn't submit anything. this is directed the at a department of public health. but i'm here to answer questions. >> any public comment on this

item? >> my name is matt osbourne. i'm here because i also attempted to discover how to appeal this permit, or whatever it is, frankly. i called -- or attempted to c l call. no phone numbers listed. tried to come down to city hall. office is no longer where it was supposed to be. called the board of appeals and spoke with somebody there asking for help because i was unable to contact who would give me the information of how to appeal this essentially. what i was appealing. i couldn't find the physical item or item number or what not. i called the planning department, since that's who i

dealt with in the past. spoke to somebody there. we looked at a map together on-line that said it was not permitted and they said, yes, it's in violation of the permits that they have on file and would i like to file a complaint? which i did. didn't hear a follow-up on that. don't know if it went anywhere, with you i did file a complaint. never got a response from the office of cannabis to my multiple emails. and something that the attorney there just mentioned is we could have gun to sparc to find out about this. we've been here before. last time we were here, we discovered it was not open to the public. if it was public and they would know about it, we would not get in there to find out about it. the city, multiple departments not giving out the information that was specifically requested. i've still not received email responses or phone call responses. and i don't understand how i'm

supposed to appeal something that nobody will tell me if it was, in fact, the case or not and the people that i did speak to were under the idea that something was wrong as well. it was a weird situation. nobody knew what was going on and, unfortunately, we don't get to say something again, because while trying to do this before the deadline, which somebody at the office or board of appeals can tell you, i called trying to do this and they, too, could not get the information required. thank you. >> thank you. any other public comment? seeing none, commissioners, the matter is submitted. >> i have a question for the city attorney. is the permit appealable? >> that's my question, too. >> i think there are some serious questions as to if this is appealable, because it's not an issuance of a new permit. it's an amendment. i think the standard here of a jurisdiction request is whether the city, as stated by the

attorney, intentionally or inadvertently caused the delay. so i think that's the question that is presented at the outset for you. >> i think because it's an amendment to an existing appeal, that was my reading, is that the -- existing permit, therefore, interest -- there is nothing to appeal because the permit was issued by the city in a proper fashion. so i don't see that there was any fault because there was no -- it was just a process, not a permit issue. i would deny -- i would deny the intent as it is, jurisdiction request, because there was no fault by the city. >> further comments? do you have a motion? >> it's a motion.

>> we have a motion from the vice president to deny the jurisdiction request because there was no fault on that. [roll call] thank you. that motion passes. before i call the next item, i wanted to ask if lydia voytek is in the room. and is abraham jason in the room? okay. thank you. so with the president's consent we're going to call this next item out of order. this is item 8, lidia woytak versus department of building inspection planning department approval, 1033-1037 washington street, prot of thing the issuance of december 15, 2017, to 1033-1037.

fourth floor and renovation of third floor unit entry, renovation of basement repair of existing egress stair at rear of property. you have 7 minutes. please speak into the microphone and you can swing it around if you need to closer to the projector. >> good afternoon, board members first of all, i want to tell that you we've been as a family involved with comments on this project from the very beginning. we -- i was called by mr. chang and told about this project -- he called me several times. each time i said, it's not feasible, because it will have such detrimental impact on our building. and, finally, i wrote him a

letter. here's the letter. i wrote a letter to express the same concerns and andrew perry was in charge and i kept emailing him. you can take a look. and it had no impact. so there was a denial by board of appeals by 3-2. i was denied by 2-3, which makes a big difference. as a matter of fact, the board

found out -- majority of the board found out that the zoning administrator did not prove her point and that extraordinary circumstances and didn't list a single extraordinary circumstance. number two, he said that he was a victim because he had only three units. he could have sub divided into two and he would have six units. number three, he said, practical difficulty that he experienced. what was the practical difficulty? section 134. this is our code. and once we start doing away with the code, we'll have no law in san francisco, no rule.

so general plan also considers buildings that are over 100 years old and they are build by famous architects or associated with famous persons, they considered it significantly historical. and that's the building, beautiful example of the architecture. so going to categoric categorical exemptions, the property is nonconforming. once you have a nonconforming,

it has to go through review before any lift of restrictions can be done. that's the law. and to -- number one and number two, and all the sections against it. let me show you what sections, and will quickly show and we're welcome to look at them. here's article 10. for of stating for purposes of this section, historic resources should include -- >> ma'am, can you pull the microphone toward you? >> okay. >> thank you. >> so section california building -- for this reason, i said that, you know, the board

voted against -- voted to oppose the appeal. two members abstained. so look at section 134. they're so clear on rear yard. now the applicant said that, oh, we have a rear yard, front yard, on the front of the lot. there is no such thing. rear backyard or front yard can be only on the ground floor, otherwise it doesn't count. and then here's section 124. dealing with the narrow -- look, no one looks at this space between the two buildings. it's a narrow space. and you have -- look at that narrow space. and you have windows on both sides.

and people will be in addition to what they have, they will be facing 15-foot wall in addition to what they have. they will be walking in the dark. i have a manager who is disabled. i have residents who are elderly. six of my children -- four of my children, sorry, and it will create tremendous hardship. higher utility bills. higher medical bills. everybody has a right to sunlight. and that's why section 134 was designed and to say that -- so these are the sections. and another thing that's important is that the buildings are judged whether they are under 50 feet or over 50 feet. and i know the applicants are

trying to push down to 50 feet. but look on the application. read the -- are you reading here? height of the building. 51 feet. do you see 51? when a building is over 50 feet, it needs to go before planning commission. >> your time is up. you will have another opportunity. >> thank you for listening. >> for rebuttal. >> i appreciate your attention. >> we'll hear from mr. jason on behalf of the permit holder.

>> good evening, members of the board. thank you for your time and consideration. this is now the third time this project has been before you. i'm going to be brief in my comments and just walk you through the timeline and you're welcome to follow up with any questions you may have about the project. prior to submittal to the planning department, a preep application meeting was held for the project. the appellant was not in attendance. modifications was made based on feedback from the design team. notification was performed per section 311 of the planning code. the appellant did not register any comments. a variance was filed and -- excuse me, appeals the variance and was denied by the board of appeals the appellant refiled and was denied. approved site permit has not

been modified. and in particular, the project underwent a voluntary preapplication meeting, to ensure that additional changes would not be done after planning department approval. this has followed the procedures laid out. and we feel that the motion for an appeal should be denied. thank you. >> question, sir? how many people roed up for your planning meeting? [please stand by]

>> i have a question. the changes you referred to in discussions with planning, did that occur before the variance was approved or after? >> before. >> thank you. >> thank you. >> good evening, planning department staff. permit holder did a good job of kind of giving a summary of the background, i'm not going to recap all of that, basically to the point. there was -- the variance was

issued, it was appealed, it was upheld, hearing request was denied, been no changes to the building permit subsequent to that. therefore, the permit was correctly approved by the planning department and i'm available for any questions you may have. >> appellant make notes of the notation or the comment of 51 feet. is there any special thing associated with the property being 51 feet in height? >> not that i'm aware of. but often times, information like that may be put on the face of the building permit and what actually is determined, what is permitted to be built is on the plans, and the plans, measured height of the building per the planning code is 50 feet. >> ok. thank you.

>> reviewed and approved and appears to have been issued correctly. >> thank you. any public comment on this item? please step forward. >> not more me but my father. can i use the lower microphone? >> he can use that, sure. you can lower the microphone. hold on one minute, i think that microphone needs to be turned on. >> wait a minute. i'm sorry. working now. ok. try it. >> i would say hi, everybody.

it's a new experience for me, first time i've been here, and i just want to see what it is, but also i have low -- a question about the permit holder, permit, because i want to know why he was issued a permit because one thing, i want to -- impact issue, i know the way i live, a strong wind blowing like last time the wind, when the strong wind, it blows everything over everything. now, since they built that building so high and with the bulk, and he don't have no back yard, the wind create a wind

tunnel and create a wind tunnel and strong wind effect on my building, on my yard, the neighbor? at present, i -- and neighbors, when the wind blow, i could have the cooking solar. now the smoke holder come through my building and another thing that dawned on me, everybody required to have back yard space, he don't have no back yard space. he is using other people's back yard space and another thing, i mean, i'm just curious about. supposed to be 40-foot height limit on the building, how high is the building? is it more than 40 foot? i don't know, i'm just curious. a lot of things on my mind -- how come that permit was issued without me knowing, i don't know

what the plan look like. it's going to impact me, because he's practically my next door neighbor. so, really, objecting to the whole thing, but -- i do have a little objection by the way, but until i see everything, i don't completely agree issuing a permit. i want to see more information before i -- yeah, ok, he could have it. i -- that's my -- that's my feeling on this. thanks. >> thank you. >> sir, do you want to state your name, sir? would you like to state your name? >> his name is frank lee. >> and mr. lee, where do you live? >> kiddy corner to the building on codman alley, one alley over from where the building is being approved. >> something like -- about, maybe 15, 20 feet away from me,

the building is here, and i'm over here. but -- >> ok, thank you, sir. >> right now, hey, i didn't -- have no input. >> sir, your time is up. >> how did i know that -- >> time is up. >> thank you. >> thank you. is there any other public comment? ok. seeing no other public comment, then you have rebuttal, three minutes of rebuttal, my woitek. >> i'm sorry, son of the person that just spoke, could you give your address to the planning gentleman, i'm sure he's checking right now to see if you are on the mailing list. >> sure. thank you. >> miss woitek, you have three minutes of rebuttal, your time.

>> number one, i would like to say that san francisco building code 2 in several places distinguishes between building under 50 feet and over 50 feet. it's a big distinction, number one. number two, we need, whenever you have nonconforming property like this one, you need a full environmental review. no review was conducted, no one came to our property to talk to the residents. how was it going to be impacted, to build, to impose 15 feet wall or 17, 18 on top of this narrow space between two buildings,

with windows leading to a staircase is inhuman, and so -- and also section 134 calls for, you cannot give section -- do away with section 134, for nonconforming property. this is a nonconforming property, and there are no exceptions. they are so strict about the -- several sections talk about bulk and height and not only section 34, but section 252. i have all these section, and i can show them one by one so -- and here it's 25 feet.

section 140, narrow alley, narrow spaces, you have to have adequate spaces to make life livable and -- and they also say in the code that you cannot under no circumstances, you can get rid of section 134. and here the zoning administrator called it impractical, practical difficulty. it's like making fun of the san francisco building code. is that what the citizens stand for? so, thank you very much. >> thank you. >> mr. jason. rebuttal?

>> i would just like to make one small clarification. application was submitted with 51 feet, that was one of the comments that came from the notice of planning requirements and the revision was made before the project went out to 311 notification to bring the height down to the 50 feet as stated on the application. that's all. >> thank you. >> mr. teague. nothing further, ok. commissioners, unless you have questions, the matter is submitted. >> who would like to start? >> from what i heard, rehearing of the variance and with the assurance that the site permit conforms to what was allowed in the variance, i don't see any issues here. >> i concur. unfortunately, the appellant spoke about the variance issued

prior and that's not what is heard before this body this evening. i did not hear very much in regards to the actual permit in hand. so, i would deny the appeal. >> i guess i'll disagree. the -- probably for the same reasons. the -- certain districts in our city have more nonconforming structures than others, and to allow expansion through a variance process, to expand a nonconforming structure i don't think makes a lot of sense. besides the fact that how we felt about, you know, how the various criteria was satisfied is not necessarily pertinent here.

but i think the permit relates to a building that has greater development than allowed by current codes, and now this expanded even further and i'm not supportive of that. >> i think i brought this up before, i can't remember. but it strikes me that i did, and that is that this building is -- would be severely out of character with the rest of the neighborhood and certainly the other houses on the block, and there is an argument with regard, i don't know why it was considered an historical asset, but that aside, it's -- i agree with commissioner, or the president, that it's nonconforming and now you are making it worse, and along those

same lines it's out of character with the rest of the neighborhood. so, but, did we go -- we, did we go 3-2 against the variance but it needed a 4-1, is that -- how it went last time? can you remind me? >> that's correct. >> i believe i voted against the variance, right? >> yes. >> so, kind of lining up maybe the same way. >> no, i think you voted for the variance. >> did i? >> i think you voted for the variance. >> i'm going to -- >> make a motion. >> i'm going to move to deny the appeal on the basis the permit was appropriately issued. >> we have a motion to deny the appeal on the basis it was properly issued. president. >> no. >> commissioner. >> aye. >> commissioner wilson. commissioner swig. >> no.

>> the vote is 2-3, so that motion fails. barring any other motions, then the permit is issued by default. >> i -- i go the other way, and just for -- uphold the appeal on the basis that the building is nonconforming building and out of character with the neighborhood. try it that way. >> isn't that the same? >> no. >> it was backwards to -- you want another motion, it's backwards to earth. and that one did not pass. so -- >> ok. so we have a motion from the vice president to uphold the appeal and deny the permit on the basis that the building is nonconforming and out of character with the neighborhood. on that motion, president fung. >> aye. >> commissioner lazarus. >> no. >> commissioner honda.

>> aye. >> commissioner wilson. >> aye. >> okay. there are four votes in favor of that motion. so, that motion passes, and the appeal is upheld and the permit is denied. ok. so commissioners, move back then to item number five, this is appeal 17-193, planning department approval, property is at 566 29th avenue, protesting the issuance to steve hong for horizontal addition to rear side building. total area, 689 sq