thank you for your time. >> president fung: thank you. i'm here to speak in support of the wireless facility. i haven't had a home phone in over 15 years. this is what i use every day. and many people like me use it every day. my generation depends on reliable mobile service for work and play. for emergencies, to connect with family and friends, to make last-minute plans to enjoy a day in the park. we need reliable mobile service to do that. everyone i know has a mobile home. it's vital to ensure we have quality access to mobile service. god forbid i'm in a bike crash in golden gate park, or witness a collision, i want to know i

can reach 911 reliably and quickly. thank you for your time. >> president fung: thank you. >> hello, my name is alexander daigian and i'm in opposition of the proposed cell tower that is to be placed -- >> are you related to the appellant? >> yes, i am. but i don't live with him, though, i just live next door. there are a few arguments i would like to make in response against the cell tower location. both the telecommunications act of 1996 cannot be based on adverse health effects of said -- on adverse health effects of high exposure to frequent issies -- frequencies. what can be argued is the pressure that the cell tower has on members of the community.

my uncle who recently suffered from a brain hemorrhage and the amount of stress this has had on him and his family. it's more than just one family. it affects the community and neighborhood as whole. in 2014, a study was conducted by the national institute for science, law and public policy. and it was concluded that after asking a thousand people, 94% of them said that having cell towers or antennas in a neighborhood would impact interests in properties. ultimately, this new addition would effect the local property values. nobody wants to wake up and the first thing they see is bulky eequipment. we cannot fight the need for more cellular service in our area, but what we can fight for

is the beauty and integrity of our neighborhood that crown castle is trying to destroy. if is supposed to be for the park, why not put it in the park? away from the community and out of sight? thank you. >> president fung: thank you. family are considered part of the appellant time, but since your daughter is sitting so patiently, i'll allow her. >> my name is audrey, daigian. i like to go and play outside. when i go outside i see a huge ugly pole. when i look out the window, the pole already has enough wires on it. i have seen some cell towers around the city and they're very ugly. this will increase the height of

the pole and increase the likeness of it falling. in addition, that is san francisco is one of the major cities that earthquakes occur, this cell tower can cause radiation. i have read many science articles and radiation can cause cancer. i plan on living in the house for long and i am scared to get cancer. this cell tower is not meant to give better service, it's for the park. why do you think the park rejected the ugly cell tower? i do not want other families to suffer from crown castle. i will help as much as i can to defend my house and property. this is my own opinion, i stand strong for it. thank you. >> hello, my name is milo. i'm involved with this organization called san francisco bay area advocates for

cellular technology in our neighborhood, it's a personal passion of mine. a bit of a regional perspective, applications like this are happening all over the bay area, it's very common. it's not just the bay area, it's the entire state and country. and so, one, i'd like to make clear that everyone on this body knows that you're prohibited from considering radio frequency emissions in this decision by federal law. the fcc makes that choice. and they very diligently ensure that we are safe. i'm concerned with being safe. we're all concerned with being safe. i understand people are concerned with being safe, but those fears are misplaced. so the appellant said this would ruin their neighborhood. so wherever they go, they'd be surprised that other houses in other neighborhoods are also "ruined" because these are everywhere and it's part of daily life. enabling as our lives change,

the technology we use to communicate with each other. in terms of taking a chance, again, if some neighborhood or block or something blocks, denies the installation of communication technology, then you're left in place if a disaster happens and you expect call first responders, seconds. i have a friend who her husband called 911, the call was dropped. luckily, he survived but this is life and death. when you consider the chance, that is much worse of a chance. one that we don't want to risk. it only takes one time for disaster to happen and a call can't get through and someone dies and then we look terrible. nobody wants that. increasingly, folks, younger folks, rely on cellular

technology to work, to create jobs, to learn, i'm reading a book now about a young entrepreneur who did a large portion of his research on his cell phone because that's the only access to information he has. and so, yes, this is designed to serve the park, people in the neighborhood will not -- you know really wouldn't affect them. it's very discreet, the design. and there is demand. i'm not the only person here, it's important to have connectivity. and so this should happen quickly and it should happen to enrich the lives of many citizens throughout the city. and people who visit the city. thank you. >> any other public comment? seeing none, we'll move on to rebuttal and hear from the appellant first. you have three minutes.

>> if i could have the overhead again. just showing images that were seen before the proposed, yes, it is discreet because it's taken from several hundred feet away, whereas this is the actual equipment. albeit a different location, but this is virtually identical if not identical to the equipment. this is what the neighbors will see. i did want to respond to questions raised by president fung and vice president swig, regarding the placement of it, whether to put it in the park. i'm so glad people did offer public comments in support of heightened service in the park. in fact, if that's the intent,

that's where it should be. vice president swig, as council advised, there were communications included in respondent's brief that demonstrate that in part cost was a motivation in their decision to move it into the neighborhoods rather than along fulton street which would have placed it a couple hundred feet away from homes. is this really the least intrusive location they could have placed it? it seems unlikely. i'd also argue the fact that the determination regarding compatibility, ongoing dialogue with planning, suggests that the city was biased and inclined to grant the permit, prejudicing the appellants and the residents. that's disturbing. and the town of hillsborough got

it right. they denied applications for 16, because the residents came first. >> counselor, i have a question. you mentioned that it was cost on why they didn't put it on the south side of fulton. we heard earlier they're not allowed to because it's the rec and park. >> initial communications are included, there are other alluded to by one of the residents who offered public comment. that he asked through public records request. initially it seemed as though rec and park pushed back because there are ongoing discussions with at&t regarding and giving preference to them. we heard a little bit about that from someone else. but later on, there were e-mails that alluded that the cost would

be higher in the park and that was the deterrent. and there was reference to covers between crown castle and rec and park employees and subsequent to that they moved in another direction. i reached out to the rec and park person, unfortunately, they're out of town this week, because i would have liked to have light shed. >> i'm sure we'll get answers tonight. thank you. >> rebuttal for the permit holder. >> thank you. i would like to start out by briefly addressing the radio frequency emission issue. and let me just put it in context. i think you've heard from speakers on both sides, federal law prohibits denying a permit for wireless telecommunications

facility when that facility complies with with the federal standards for rf emissions. there is no dispute about that and the city attorney will so advise you. there is a process to confirm that any new facility complies with those standards on rf emissions. the applicant has to submit a report from an independent professional engineer as we did here, that shows that the facility will operate under the amply -- am kabl /* /- /* applicable standards. this is not a closed case. it was properly approved. it was properly documented. it's a tiny fraction of the allowable emissions. and the appellant doesn't challenge any of that. the argument they made, they

think some other standards apply, but that's not really the issue. the issue is there is by law a set of standards, both san francisco laws and there is no question we complied with that. i would also point out that there was a request that was made to the planning department for a specific test to be done, i believe from this property. they won't tell us who the requester was, but we did do a specific test with respect to this location. and it showed that the measure from the second floor of the residence, which was the subject of the request, this would have 7812 times lower than the allowable emissions.

so that measurement is taken from the point on the second floor closest to the antenna. as you get further in, it's even less than that 7812 times lower than the allowable emissions. the other things i want to hit briefly, the thought that we could place this in the park. we simply could not do it. cost is not a factor whatsoever. the recreation and park department said they will only deal with at&t for placement in the park. we submitted documentation for that. i would simply point out that the department of public health attached conditions to their approval which are part of the record that addressed the sound issue. >> councillor? >> go ahead. >> first question, someone from the public had mentioned that there is work being performed on that pole as we speak now.

can you answer to that? >> that's not correct. there is a separate issue of stringing fiber that is subject to a different sort of permit, a fiber permit, which we have. i don't know if this was gentleman, but when somebody said, please stop, we did stop. we had every right because we had a fiber permit, we are not building this, or jumping the gun. >> thank you. >> vice president swig: i'm confused. thank you to the city attorney for giving me the direction on this. so i'm looking at exhibit 4. and as i prefaced earlier, before i'm prepared to recommend to anybody do anything on this,

i want clarity that crown castle cannot put a facility on a pole on fulton street on the south side. now, you've all pointed out, no, you can't put it into the park. dpw, based on hearsay, no documentation, nothing. i see nothing in here. is that at park or is that not the park? and what i do see in here is a reference from sharon james. what about the cost along fulton street? what is the process? is it only a one-year agreement? so clearly there was a conversation about fulton street and then miss cech am from rex and park said i understand you

are not willing to pay more, so i don't want to spend anymore time on this related to the installations. i want to know whether telephone poles or poles on fulton street are acceptable to place these facilities and not based on hearsay from dpw with all due respect to dpw, let's come up with a paper trail. if the paper trail says it's part of golden gate park and it's not open to the facility, end of game. but all we have here is hearsay and allusion to the fact that the cost is not worth it. i want clarity on it. >> perhaps we could hear from both dpw and planning on that issue. >> that was my suggestion along

those lines. >> we've been told that we cannot do it on fulton street. >> i've been told that i can't do a lot of things. you know, but if statute is not presented to me, then i'm sorry for being argumentative, hearsay does not apply in rendering a decision on my part, especially a court of law. >> i'd like to just jump in and say that i think the appropriate party to respond to that is rec and park and they're not here. that's all i'm going to say. >> president fung: i don't want to be argumentative about it, that's what we've been told, we cannot do it. and -- >> i believe that dpw would confirm that and i believe rec and park would confirm that. >> who is going to be able to give us the answer?

>> maybe we can't get it tonight. >> no, no, that's probably why i'll move this forward, but i'd like clarification so when we reach the potential resolution, we know who to ask. who do we ask who the poles belong to on fulton street? >> let's listen to the departments. dpw and planning, because there are elements of article 25 that may have some -- >> ok. >> thank you. >> it's great to see you guys again. we don't have the information with us, but we're able to provide maps. i'll go back to the dedication maps we have on record and then we can definitely determine the jurisdiction. >> should we call omar now? >> omar is no longer with planning i believe.

you can trust me. thank you. >> do you have anything you want to add to the issue? >> no. >> ok. >> nothing from mr. teague? ok, so at this point commissioners, the matter is submitted. >> president fung: until we get an answer to that, i don't think it's fair for us to -- so we have not exhausted the issue as to whether every alternative location which is legal has been reviewed for the placement of this site in the interest of the neighborhood and the appellant. >> i'm willing to continue this, but i would like somebody here when we hear it again, from rec and park, my first choice is dana ketcham, but if not,

someone in her department knowledgeable. >> i think it would be up to dpw to arrange the appropriate person that has specific answers to that question. continue to when? >> what does the calendar look like? >> how is may 9 looking? >> does may 9 work for both parties? i'm potentially not here. >> how about may 23? that's a little less crowded at this point. >> does that work? >> it works for the permit holder. how about the appellant? ok. >> so do we have a motion? >> i'll move to continue the item to may 23. >> president fung?

>> aye. commissioner honda? aye commissioner wilson? aye. vice president swig? aye. that motion passes to continue the matter to the 23rd. we expect a department representative for rec and park. do you need a break in -- i'm sorry, one moment, do you want any further briefing on this matter? >> no, i think it's one question, right? >> yeah, just the jurisdiction as to the telephone poles on fulton street. >> no further briefing. >> i guess i have a slightly different issue. i'd like explanation of why at&t is given a monopoly in the park. i don't know if dpw can answer that. so again, that's something i would like to know. >> would we be allowed to submit

evidence regarding the rec and park at this point? >> i think we're requesting dpw to reach out to the city family member in rec and park to show up on the date and provide the information that we are requesting so that would be unnecessary for you to do. >> thank you. >> ok, thank you. so now we move to item 9. let's continue. >> item 9 is appeal number 18-012, subject property 245 11th avenue, albert tom versus department of building inspection, planning department approval. protesting issuance to james she

gown of a site permit of existing light court at ground floor for laundry and common half bathroom. application number 2016, 06, 03, 9132 s. we'll hear from the appellant. >> i'm albert tom. the property granted the permit is 245 and the appellant property is 241. my first argument is around youth accessory dwelling units and my argument, infill addition and expansion mean the same thing. building outside the existing envelope of the building. all the information are

statements of fact i make come from the dbi website. applicants for the program received waivers. the applicant must follow strict guidelines to receive the waivers. one is adu must be constructed within the building envelope. expansions are permitted in limited circumstances. the building department doesn't want property owners to abuse the program and receive waivers by expanding the size of their building to construct adu. the permit holder wants to construct two adus with expansion. they're included in one permit. expansion is included in a second permit. the second permit is to infill the light court and that is what i'm appealing.

the existing laundry facilities, sink and toilet on the first floor will be moved to the infill, the areas relinquished will be used by the adu. now the adu permit can claim that live within the building envelope with no expansion. the infill hides the expansion. the adu and the infill should be included in one permit to promote transparency. all the construction will be honestly presented under a single permit. the single permit can be decided using adu requirements. the planner wrote, i quote, approved, addition of two adu uz /* uz at the ground floor level. we know expansion was an issue and the permit holder convinced

the planner to approve the permit, but the planner statement regarding no expansions isn't true. the expansion is hidden in another permit. if i have time, i would like to show you the floor plan for the two permits. they show existing facilities moved to the infill to make room for the adu. this should be denied because it is hiding expansion for adus. my second argument is around sunlight. a wall located at the property line replaces the light court. the following are in your brief shows a small amount of space shared by the buildings and the height of the wall relative to the building. reaching the windows on the ground floor will be reduced and

maybe eliminated. sunlight is important and i want to keep the sunlight. hopefully, you have the pictures where the infill roof is nine feet above the ground, it extends the property line, an additional two and a half feet above the roof. and then you can see the windows on your left. and the infill on your right. and there is another picture taken from the other and you can see the shadows are large now and will deepen if the light court is filled in. my next argument centers around drainage. all i want, if it's being built, after it's built, i want good drainage. i don't want the existing drain does a good job so it doesn't flow into 241. i want the new drainage to have the same capacity.

and then the next item is noise. the proposed laundry and toilet rooms will be close to 2414 and i want assurances when the four machines are used at the same time, the noise won't impact 241. the next item is density. that refers to the scale of the building relative to the size of the lot. if the infill is allowed, there will be no open space except for 16 foot yard. the building will be blocked by 86% of the property. there may be building codes specifying how large the yard should be or how much open space the property should have. the sides of the building may already violate the building code and the infill makes the violation worse. i show pictures of 245 reaches the property line everywhere. the adu program waives open space requirements. the waiver can't be applied on

the infill permit. the permit holder told me the open space requirement has been grandfathered for his property, but is that true for an addition? i would like the planning department to tell me yes or no. i feel the existing open space should be preserved. it would be nice to have a little elbow room in an urban setting so a person doesn't feel trapped by surroundings. you see the pictures of the permit holder property coming right to the property line. and also the open space of the backyard is very small. 16 feet, 7 inches. my final argument is property value. 241 is already impacted by the shado shadows by the scale an size of 241. along the infill only makes the

problem worse and will run the entire length of the property line. 241 is too flat in the back. 235 on the opposite side is a six storey building. [bell ringing]... more difficult to sell and the property will -- >> thank you, sir. you'll have time in rebuttal, ok. >> i have a couple of questions mr. tom. in your brief, sunlight is listed as number one. >> i'm sorry? >> sunlight and shadowing is listed as number one. let me ask the question, please, sir. so given that you're facing west and the sun is coming southeast and that building is extremely long and the picture that you

took, that area does not actually see very much sunlight and the roof that you have overyour own building kind of -- is that a habitable space? is that lower part habitable space? >> if you look in the assessor property map, it's three units & it's legal. >> thank you. >> thank you, sir. let's hear from the permit holder. >> please identify yourself for the record. >> my name is val, i'm the designer engineer for the permit holder and mr. shegoian. and i'm here to respond to the arguments of the appellant. i'd like to start with noting

that the pretty extensive argument that he made questioning and arguing against adus is not presented in his brief. my understanding is for the sake of opening, he has to present it and we have a chance to prepare the response. and this is not listed in his brief at all. it starts number one, sunlight. and then drainage. noise level, density, property value. there was no mention in his brief of adus all together. >> he mentions it on page 2. >> however, since we are at it and he brought up the issue of transparency and that the permit had to be one permit, it's guidelines of the building department that they separate it, that adu has to be a permit on its own, even from the

upgrade which is part of, nothing is said in these arguments, but it's part of the project here. and the building department wants to see them as separate permits. and at the request of the planning department we have a sheet that has it combined on the information, everything that is going on from a standpoint of the adu and the infill. and i believe you commissioners have the sheet and it has been presented. other than that, we replied to his concerns. i believe we replied adequately, that as commissioner said, the sunlight argument is basically nonexistent, because there is no sunlight there to begin with. and then drainage, he has claimed his property is going to

be impacted by the infill. he is completely irrelevant, because presently, it's seen in his own picture, presently the drainage in the space that is being proposed to be infilled is entirely separate from his property. there is nothing draining on his property. and when the infill is constructed it will be drained up to code. the drainage will improve, if anything. then he goes to the noise level. we replied to that, we are planning to have insulation in the exterior wall and the noise, the machines are going to be new machines and the noise will not exceed the levels common in the city environment. then the appellant makes an argument that the existing density violates the building code which is simply incorrect because the building code first

of all doesn't govern density. and the building has been in existence there for many decades. it's just there. and there is no, what we're doing is not -- is waived from the additional units, waived from the density requirements. and the effect of the infill has no relevance to the density per se. and then lastly, he is talking about property value. we really don't believe it's even proper to tie it together, because this is not -- a little bit at a loss why he thinks this addition is going to affect negatively apparently his property value. and we believe that the appellant's concerns are not really valid and we've replied

to those and we believe we replied clearly. >> i have several questions, are you done? >> yes. >> so you have two proposed additional dwelling units? >> correct. >> what size are these, each? >> i believe they're about 400 -- >> it doesn't show in the plans, that's why i'm asking. >> one is 455 square feet and the other is 415. it's on the last sheet in your -- >> thank you. and as adus are new, how many have you completed so far? you're the engineer, right? the architect? how many adus have you completed so far? >> i think one under construction. several have been approved by

planning. >> commissioner honda: is the reason why you need the infill is because you're taking tenant storage? >> it's somewhat related, but it's also going to be a lot better laundry facility for the benefit of the tenants. >> >> commissioner honda: ok, thank you. >> clerk: thank you. next we'll hear from the department. zoning administrator. >> good evening, president, commissioners. again, this is an appeal for permit at the property ott 245 11th avenue, it contains 12 units. the building permit is only to fill the light court. infill area would include common laundry facilities.

this permit is part of a larger project on the subject property that also includes two other building permits and exposure variance for a retro fit and units at the rear of the ground floor. to clarify the proposed adus would not be located within the area that is filled in. adus are not permitted to go into portions of the building that have been expanded. the subject permit was filed june 23, 2016 and determined to be compliant and consistent with the residential guidelines. section 311 was conducted in february and march of last year. the appellant was included in that and no request for discussion was filed. so it was approved last year. i would say that the planning department was aware of all of

the -- all three of the permits. there are reasons why a project may split up the permits. specifically, here, a couple of years ago, the city passed a fee ordinance for specifically legalizing dwelling units and adding adus that charges a lower fee rate for those permits, so it's not uncommon to see those split so they get the lower fee rate. and i would note that the adu permits has a note on the permit that the light is supposed to infilled under a separate permit. so the department was aware of all three permits when it reviewed and approved the permit and we believe it was properly approved, issued. i'm available. >> i have a question. so we've heard a lot about adus

to the city, what does the pipeline look like and what has been done recently? >> i don't have those numbers with me. actually, this is the second time this has been asked. i'll have that with me next time. >> the reason why is that i saw it on tv, that when london was acting mayor, that was one of the issues, that there was a lot of adus held up in the pipeline, due mostly to the fire department holding those up. are they moving faster and going through more? >> i think with any program that is new and it's something to keep in mind, the adu program is relatively new. and getting to the city-wide version of the program and then since then the program has been amended a couple of times. so i think with any new program it takes time for property owners and architects and staff to get to know it, decide if -- >> commissioner honda: that means we're going be seeing a

few more? >> sure, we're already seeing it. i think there is reason you don't see a lot of permit adus completed, because there is a lot to go through and it's early in the program. >> i'm not sure i heard that correctly, i was going to ask for clarification from the appellant. i thought hi heard him say he has a unit on the ground floor? >> the appellant? >> if he has a unit and then this would be the matching light well, wouldn't it? >> well, if they have a unit on the ground floor, we generally for light well purposes, you're allowed to fill in at the ground floor. you get into larger issues with the resident or design guidelines and so on when you go above the ground floor. you could do a 10 foot fence,

generally a one story wall or fence along your side property line is not something that is scrutinized. >> thank you. >> inspector duffy? >> we get to hear from joe, wow. >> thank you, commissioner honda. joe duffy. the permit. ground floor for laundry. the permit has been reviewed and they have reviewed it for building code compliance. it was filed around june 2016. the only building code issue i heard in the brief was for the roof and that is covered under

chapter 15 of the san francisco building code. and there are two roof drains shown on the new infill, so that's more than adequate and we would say if the permit goes ahead, they will be put in per code. i'm available for questions. >> no questions, we'll move on to public comment. is there any public comment on the item? being no public comment, we'll move on to rebuttal and hear from the appellant. >> i found the department of building inspection that is not in the brief, and they said, yes, as long as i include anytime the seven minutes. and the planning department didn't answer if the building is grandfathered from open space

requirements, is the addition also grandfathered from open space requirements? i want to address the adu again. the city planning approved the infill on march 20, 2017, exactly three months later city planning approved the adu. the same planner approved both permits three months apart. this makes me a little suspicious, is there an attempt to hide the expansion? if the planning department allows the adu, what is to separate them by using two permits, this would set a precedent and the requirement for now expansions would be meaningless. the adu waived many planning requirements and many people will take advantage of it. don't let the program be abused. regarding sunlight, the permit holder states he was only affected by the 241 in the

basement, that is not true. the unit in the back is a legal housekeeping unit. the assessor map shows it's three flats and housekeeping unit on the rear. the address of the rear unit is 241 a. here again, the permit holder states appellant's concern is unjustified, the permit of laundry faces a 3-foot wide walkway and then the appellant living space. that is not true. the assessor property map shows it's two units, three flats and housekeeping, i want to be assured the noise level will not affect the tenants living. regarding density, the size of the building is grandfathered in, but is addition also grandfathered? can the planning department provide an answer?

does the addition, is it grandfathered from open space? the adu is part of a separate permit. 245 towers over 241 and allowing it further will lower the property value. the infill affect the property value. >> clerk: we'll hear from the permit holder now. you have three minutes, please identify yourself. >> i am jim.

this building, my building, shadows his. but also there is a roof over that area, that is also shadowing it. i did go to the building department and did a research on the permit history of my neighbor's building. and i found nothing saying there was an inlaw unit added or this canopy or deck, i'm not sure what you want to call it, was ever permitted to be there. that is the real issue of light getting into the ground floor, the basement unit. i don't believe -- i believe that it is not occupied at the time. there is -- i mean i don't know, i've never seen anybody there, but i believe it's not occupied. noise is one of the things that mr. tom is worried about. there is laundry in the building right now that is on the neighboring wall and i offered

to get all the machines going and have him come and listen on the outside of the building in his backyard and he didn't take me up on the opportunity to do that. in the new plan, the laundry is not on the neighboring wall. it is on the interior wall of the building as per the plan that you have. i think that's about all i have, unless you have questions for me. >> no questions. thank you, sir. >> does the department have any? rebuttal? ok. >> good evening, just briefly the appellant made questions around open space. happy to address those. this permit for the light well infill is not creating a new dwelling unit, so it doesn't trigger open space requirement. and it doesn't take away any required open space that would

be required to be maintained for any existing dwelling unit. so there is no specific open space conflict for the permit in question now. beyond that, you asked question about open space for adu. the program does allow the zoning administrator to grant a waiver for open space for partial relief from the open space requirement for the adu and that was done for the other permit, for the adu, which is fairly common as typically there is not enough open space on a property to meet the requirements for adu. in terms of the planning department trying to hide permits, let me show on the overhead here, that again, in the permit tracking, the planner specifically noted that this permit was associated with the other two permits and what the other two permits were proposing to do. so it was very clear from the planner's perspective and put into public tracking system that

the permits were related. i'm available for any other questions. >> as a result, nobody -- [inaudible] >> as a result, nobody could accuse a serial permitting situation that was trying to -- a malicious serial. >> correct, it wasn't an attempt, or at least not a successful attempt, to have multiple permits so one larger project gets by planning. >> question, so you explained and i'm not 100% clear, they were exempt of the open space requirement because it predated it, correct? >> you mean for the adu? >> just for the building in general? >> i'm not sure if they have a roof deck, even if they did, 12 units, the open space would be

significant. my educated guess is they are legally open space. >> is the side yard not open space? >> it's not really side yard, it's an open space. it has to be 10 by 10 and this light court was 6 feet wide. >> and it's not considered expansion of nonconforming? >> that's right, if you have a nonconforming structure, if you are going to do an addition to the structure that requires a variance. if you're doing an addition to the building within the envelope, it does not trigger it. >> inspector duffy? anything to add? >> no.

>> clerk: this matter is submitted. >> president fung: going over the deal, the sunlight, i don't believe it's a factor. the drainage, it's going to be code compliant and inspected. noise level, again, all going to be as per code. density, the department has already allowed. i would say this is, i would approve it on the condition that since they are doing infill, that no further infill above the space that they're infilling at a future time. since they're putting a new footprint on that building. so i mean -- >> i agree. >> that would be my motion. >> so that's the motion to grant the appeal and condition the issuance of the permit on the

requirement that they don't exceed -- >> so there is special note of restrictions that above the infill there is no further infill. they can't another story. >> ok. >> so motion to grant the appeal on condition of permit on the prohibition of putting another story over the infill. it's an nsr of the property. notice of special restriction. so -- >> you're doing really well for your first night. >> thank you, we still have one more case. so president? aye. commissioner lazarus? aye. commissioner wilson? aye.

vice president swig? aye. that passes. >> i'm about to recuse myself on the next case. >> i can accuse you. >> please call the next case. >> we're going to move. commissioner swig will recuse himself. >> we're going to move to item number 13. this is appeal number 17-183. subject property is 180 montgomery street. rich menendez is the appellant. sid ra montgomery, subject property owner. >> i have to recuse myself on this item as i have potential conflicts of interest with interest within 500 feet of this. >> clerk: ok. thank you. >> goodbye, lucky dog.

>> good night. >> i'll just continue reading the caption for the record. appealing the issuance on november 15, 2017 of a letter of determination regarding whether an existing use on the subject property doing business as workshop cafe is a restaurant use under the planning code. this is record number, 2017-00828 zad. and we will hear from the appellant. you have seven minutes. please identify yourself. >> great, we have a presentation, i understand the screen is not working, but i want to make sure everyone can see it. >> we can see it. >> good evening. standing next to me is the owner of the workshop cafe and self of the employees are also here today. eager to see the outcome of the

hearing. >> clerk: the employees are considered interested parties. >> that's the reason they're not coming up and speaking. it's a culinary manager and kitchen staff and operations team. we want to get right to the business and legal matter, because we know they cannot speak, we wanted to recognize the fact they're here. the issue before the board is whether they have erred in the interpretation of the planning code. the workshop cafe is a restaurant that provides food and beverage to the public in a creative space with open seating area. the issue before the board is not whether the reserve seating area to the workshop cafe is accessory to the restaurant use, but rather if the cafe meets the definition of use under the planning code. the planning code has clear definition of retail use. retail use involves the sale of goods arched services directly to the consumer or the end user.

the key to something being a retail use as defined under the planning code is whether it's open to the public. whether anyone walking down the street can use or purchase goods or services being offered for sale. that is the definition of retail and it is what the cafe is doing. anyone can access any part of the workshop cafe, it's 100% open to the public. the office has a different definition. office is a non-retail service and sales use that involves sales and services to other businesses rather than the end user. to be office you need to not provide direct sales to the general public. the workshop cafe provides direct sales to the general public. both in terms of food and beverage and seats, meaning it cannot be an office. they compare the cafe to co-working space naming a few, but fails to mention the differences between the workshop cafe and the working spaces. hub and other co-working spaces require memberships or licenses.

they are not open to the general public. you have to join or sign up and anyone walking off the streets cannot just sit down. we work in impact hub and other co-working spaces do not have kitchens, they have snack bars, but they are no restaurants and do not offer food for sale to the general public. the workshop cafe has a full service kitchen. it serves meals, snacks and beverages throughout the day and meets the definition of a restaurant. food and beverage sales are 66% of the cafe's gross receipts. and they employ people, including a full-time culinary manager. food and beverages are served throughout the space, making the areas not accessory to the restaurant use, but part of the restaurant use. in response to the brief, they tried to make distinctions between certain seating areas. but these distinctions are not

relevant. the definition of restaurant and you the planning code. the planning code defines a restaurant as retail sales and service use that prepared ready to eat cooked foods to customers for consumption on the premises with seating. the definition of restaurant under the planning code does not dictate how the restaurant should operate its business. charging for a seat, or requiring every person to order food are not relevant to the planning code definition. they're comparing the cafe to what it considers a traditional restaurant, but those distinctions that exist, they do not exist because they would overly prescribe how a business must operate and tlb thereby impact the market. instead it makes it a restaurant with an interesting marketing plan for customers who can sit an