busy doing other things, and has chosen not to champion it. that is the difference of that business getting their way, and this business not getting their way. is that fundamentally what it is? >> i can only answer -- >> is that an apt description of what happened? is that a supervisor took it upon themselves to champion a business means, and the supervisor, in this case, did not choose to champion it's because they were otherwise occupied or didn't choose, for no reason. just chose not to do it. is that fundamentally what happened? >> commissioner, i was not part of this conversation. i can only address the action i have taken. >> vice-president swig: was it supervisor peskin? >> yes, it was. >> vice-president swig: that is really good information for me. >> you are welcome. >> vice-president swig: so, the reason i bring this up, countless times, we, on this

commission are faced with upholding the law. tonight, we are faced with upholding the law, you know, it is clear, that without that acceptance, which is the seismic thing, these guys don't have any chance of getting this thing back, because it is the law. but, when we are up here, there are several constant cases where i know we think together. we can't chat about it, but we think together. because sometimes you can't comment. but, you know, we don't feel that something is right. if we are not consistent with the law, and some of these people could come up and say, hey,, last week, you let these guys go. by virtue, my problem is, by virtue of the fact that your department, with aid from the

board of supervisors, they were your catalyst, they chose to deny the law, and give the humidor that bias. that pass. that is very problematic. very problematic so, i mean, why can't this store, which is an award-winning store, which is a saviour of the community, we've heard testimony from all. why can't this store get the same by, or do they need to go to a supervisor? whether it is mr cowen or mr peskin, to do the same thing? that is my question. >> to answer your question, we really worked very hard, in a case by case basis and we take a lot of efforts. there's two of us to review these applications and we try to inform the business owners how it works and how the exception

works and how -- and what they would need to do in order to comply or qualify for an exception. we try to really empower the business so it can make decisions. department of public health was not, you know, in support of the humidor ordinance. the department of public health is very, in my opinion, i've worked with them for 23 years, and they are very consistent. in trying to make sure it is equitable and fair. that is part of what i do when i go out. i provide all the sustainment information to these businesses that are facing, you know, when they don't qualify for an exception, and i provide them with the same information. and then we have two, you know, implement the law. which is what we are doing. i hope the humidor is able to qualify for an exception. i hope that every application that comes before my desk qualifies for an exception. but, that doesn't always happen.

>> vice-president swig: understood. >> i don't think the department should be held responsible of the actions of the board of supervisors. >> president fung: thank you. >> thank you very much, sir. >> president fung: i have a question for mr paul. our last hearing, i think ending the discussion by saying you had a lot of homework to do, this law and code is quite definiti definitive. without any type of information and basis, you know, any action by this board is subject, then, to litigation. i need to see -- >> president fung: what is the question?

>> i need to see the homework. >> president fung: i'm sorry. if you could speak in the mic, i can't hear you. >> i need to see the homework. >> president fung: i understand what you are saying. >> the building permit application is on hold at the billing department. there is an application for a change of use, i have all the information on it. i have the description of the scope of work. however, it is not completed, and there is no indication that the property owner is pushing it forward with any deliberation, with any speed. so yes, i research that in it's fullness. if i am bringing it to you, i am bringing it to you as an application only. it is not a permanent. it is not a requirement. i really don't know how i can fully address the concern of the board, except to say that the board has noble powers to

prevent a very bad outcome that is not intended by this legislation. that's why i'm coming forward. >> president fung: you've been in front of this board many times. the noble powers doesn't necessarily stretch as far as we may think sometimes. >> well i could present to you the permit information, and present to you the information of this year wallace and tiedowns, and floor diaphragms being required -- >> vice-president swig: duffy recommended you get a determination in rating from the department of building and inspection. that would be the best route here. >> i will do that. >> vice-president swig: is that agreeable? >> that is agreeable, yes. >> president fung: do you need a continuance? >> i will not be able to do that today but i will need a continuance, please. thank you. >> commissioner lazarus: ok.

>> president fung: a move or a continuance. further questions? >> vice-president swig: no. how much time with they need, right? how much time would you need? >> a few weeks? and i don't think we have to have a full hearing at that time. i don't think the neighbours need to come to present but we can provide a letter from technical services. >> president fung: madam director, june 20th is full? >> commissioner lazarus: yes. the next available wedge be july 11th. unless you can get it before. we could probably squeeze it in june 13th. >> president fung: that might be a long shot. we have the pioneer back. we have pioneer back. mr sanchez?

>> thank you. just to the calendar question, i think there is a delay of property that has an appeal on the 20th. we intend to revoke that permit tomorrow, which would make that appeal move. we are also working with parties. it may take one case off of the calendar. >> vice-president swig: it is good to have you back. [laughter] >> president fung: by the way mr sanchez, there is a question from me to you on this case. >> how is your vacation? just getting. >> president fung: in the last hearing on this, i brought up the... numerical limitations placed on certain types of uses. i brought up the one that occurred on billboard street. do you remember that? you maybe don't quite remember that. i was trying to remember, myself, how the nexus occurred where the planning department

established that you can only have 31 restaurants on that street. >> i mean, in some of those cases, it depends what was there at the time. in regards to the street, there was some uniqueness in the nguala where talked about equilibrium of restaurants, and the argument was that there were no new restaurants because of the restaurant had closed. so, if we are thinking of the same case, it varies. the general plan sets forth some parameters in terms of concentration of eating and drinking uses, but it varies by uses. you can have canvas statutory and the regulation is from 600 feet from one used to another. in some cases, there are no requirements. >> president fung: thank you. madam director? >> commissioner lazarus: we have a motion to continue this matter to june 20th two enable the appellant to get a letter of

determination from the department of building inspection regarding the seismic upgrades at 4,503rd street? do we have a motion? >> president fung: a little bit more specific, the department of building inspections technical services. >> okay. >> president fung: is that right? >> motion to continue the matter to june 20th two enable the appellate to get a letter of determination from department of building inspections technical services regarding the seismic upgrades at are required at 4500 third street. who would be making that motion? >> i will make the motion. >> okay. that is a motion by vice president swig on that motion. president fung? commissioner honda? ok. that motion passes on the matter is continued to june 20th. thank you. we will go back now to item number offer.

the jurisdiction request at 2900 vallejo street. they are asking the board take jurisdiction over alteration permit number 2018 which was issued on march 8th, 2018. by the san francisco department of building inspections. it ended on march 23rd, 2018 and the jurisdiction request was filed at the board office on may 9th, 2018. the permit holder wants to install a glass handrail at the roof. we will hear from the requesters first. >> president fung: do you have a procedural question? >> some of the issues maybe moot and there is no need for a permit. this maybe resolvable. >> president fung: do you want

a continuance? >> there is a way out for the system. >> president fung: do you want to continuance? >> yes, so we can show the way out of the system. the only question is, how long do we continue it? by two weeks. and then maybe we don't have to come back. >> president fung: well then you have to look at july 11th. if you guys resolve it, you withdraw your appeal. >> and also, i just want to know a clarification, this agreement does not repair the zoning limit ability to look at all the problems. that is not before this court. >> president fung: does the request -- it is a request for continuance, ok? move to continue this case based upon the two parties concurrent to july 11th. >> okay. we have a motion from -- is

there any public comment on that motion? ok, we have a motion from president fung to continue with this matter to july 11th to allow the parties to continue discussions on this matter and hopefully settle it. on that motion, commissioner lazarus opera -- lazarus? the matter is continued to july 11th. >> president fung: should be take a short break? >> we will take a short break. thank you >> okay. welcome back to the june 6, 2018 hearing of the board of appeals. we are now moving on to item number 6 which is appeal number 18-022. this concerns a property at 799 castro street and 387838

1,821st street. gross testing the issuance on the sixth. the process required to demolish and construct a new structure at castro street. first, we will hear from -- we will be hearing from the attorney. >> prior to starting the hearing, i need to disclose that i am a partner in a project that has hired them as council. their appearance before this body this evening will not have a fact on my decision. i have not made that disclosure in a while. >> thank you commissioner honda. >> thank you. good evening commissioners. ryan patterson, on behalf of the appellants. they unfortunately could not be here tonight because of a family

religious ceremony. this is the first of two appeals we will here tonight. the first one is regarding a letter of determination, the second one to be called separately regarding a variance in the project. the property is fairly standard. is 26 and a half feet by 100 feet. it is not standard in that it contains two buildings already. the rear building is a duplex, two department units. the front building is a historic grocery store with housekeepers quarters. rent controlled residential units, which are not currently occupied residentially. the owner is using it for commercial leasing. this is a pretty interesting project with a lot of background. i will have to lean on my brief for a lot of it but i want to touch on the high points. there was a prior appeal

regarding this project, as you may recall. the project sponsor maintains that there was not a rent-controlled resident dwelling units in this building. they did the right thing, and rightfully recognized that this is lawfully a rent-controlled dwelling units. so the property records were confirmed, and that appeal was resolved. the result is that the project sponsor applied for a conditional use permit to demolish the residential structure to move forward with building a large single-family luxury home in its place. that is why we are here tonight. why do we care? there has obviously been a lot of process around this project. the reason is, my clients live immediately adjacent to the north. their value in their property will be significantly impacted which is, of course, an important consideration on the variance and you will hear about that in the next appeal. we asked questions about why the

project is being manoeuvred through the permitting process in a very strange way in this letter of determination which is under appeal. and now i will touch me of the high points. the first is the conditional use permit to demolish the building was approved prior to the issuance of the variance, prior to approval of the replacement project, which is not allowed under the planning code. it cannot approved for demolition unless the project is code compliant. if it is not code compliant, then there is not a final variance in place. it is approved by the planning commission on february 22nd. there was an appeal to the board of supervisors on april 24th and it happened before the variance was solved. the variance still isn't final. it was before you on appeal in

about a half hour. the planning code requires written findings. the argument that there is a variance in place because the acting zoning administer said it in a hearing. it simply does not hold water. it is not how the code is set up. you might ask, why does that matter? why does it matter if we approved one formally before the other? the answer is, conditional use permits and related building permits for projects that are generally abnormal, that is why they require conditional use authorization. that goes to the board of supervisors for final decision-making. they are set up by statute, by code, as the ultimate decision maker in these projects. if we allow for a ceu before the variance is approved, that turns a process on its head. that means the board of supervisors is no longer the final decision maker. instead, the board of appeals becomes a final decision maker.

that is simply upside down. it also leads to absurd results and unnecessary process because now we have another appeal later tonight, looking at the variance on which the entire project is based. similarly, the board of appeals is the final decision maker on variance. you have that power. in sending the entire project to the board of supervisors before it comes to you to decide the underlying observation deprives you of your authority. the board of supervisors has told you that the project is approvable, even though you have not made that decision yet. again, that is not how the code is set up. it is not legal. the upshot of all of this, is it has to be turned around. you have to go through the process the right way and make the right decisions in the right order. similarly, under the planning code, an application authorizing demolition of a dwelling shall

not be approved and issued into the city has granted final approval of the building permit for construction and replacement building. that also has not happened yet. there is no building permit in place for this. whol thing is backwards. the letter of determination tries to get around that problem by arguing that the quote unquote application mentioned in the code really means a brick building permit application. they are actually elsewhere in that same section of the planning code. as the principle of statutory construction, when the legislative body rights code and says one phrase here, and down a little later, uses a different phrase, we interpret that to mean two different things, unless there is no other way to harmonize the language of the code. so that really cannot be what is meant by the planning code section 311. the application is clearly

referring to, in this case, the conditional use application. it should not have been issued yet. the first question in this process is, what are you going to build a replacement? and that question still has not been answered. there is not a finalbuildg permit and plans approved by the planning commission were not finished. the commission actually said go back and work with staff to revise the plans further. a letter of determination say it can be converted and expanded beyond existing envelope. that is also wrong. it is impossible to distinguish between the commercial and residential portions. if you are demolishing the residential portion, you can't then say it will be sanded and converted, because it no longer exists. thank you very much. i will answer any questions. >> i've got a question. going through the brief, your client is your boss? [laughter] >> that is true.

my other client is andrew's wife. >> you better when. that was it. >> i always try. thank you. >> thank you. we will now hear from the subject property owner. the attorney for the property owner. >> thank you. >> thank you. president fung, members of the board, on behalf of the appellant, the property owner on the project sponsor for the project on the property that are subject of the lod. >> put that back?

>> no, zoom it in. >> you can refer to the overhead for a moment. i would like to begin by clarifying some of the background here and how we ended up with an lod in this appeal. this photograph shows the subject property as it exists today. this building in the front is 1799 -- 799 castro. the building in the back is a two units residential building with the 21st street address. the castro building is occupied by a law office. it does not have a residential use. it has and has a residential use for many decades. there was a residential use their long ago in association with a grocery store. the residential use was it removed freiburg -- from -- by a building permit in 1980.

two years ago this project was nearing review at the planning commission. the appellant had requested a discretionary review. the department of building inspection issued a cfc confirming. there was no residential use at castro. the planning department agreed. the appellants appealed at cse. before coming to an appeal here, he has a means of compromise, in an attempt to work with a neighbour and the appellant. they agreed to recognize the residential use in the castro building. agreeing to do so meant that we had to change the project in our applications to apply for a conditional use operation to demolish the residential units. we proposed to replace the units. this has been approved in the 21st street building as an aid to you a rent-controlled adu. we thought this was a reasonable

compromise. now the appellant, previously was opposing the project saying there was a residential use there. now that we you provided it, they still oppose the project. the conditional use authorization, as you have heard, was approved by the planning commission. that was appealed to the board of supervisors. the board of supervisors denied the appeal unanimously. while we were preparing to go to the planning commission for the conditional use authorization, the appellants filed the request for the lod. the main argument in the lod appeal concerns the planning code section 311 which you heard, and the order of approvals granted for this project. section 311 provides that you cannot issue an approval for a demolition of a dwelling units

before you have approved the replacement structure for the dwelling units. the appellant's claim that the application approving the demolition of the dwelling units is a conditional use authorization. the lod explains that is not the case. the appellants have not raised any legal or factual error in that conclusion. i would just add to that, that section 311 was adopted in 1996. long before there was any conditional use authorization required for the removal of a dwelling units. it couldn't have been considering the conditional use authorization. the intent of the code is to make sure that there is an approval in place for a replacement structure before demolition is approved. that is the case here. that will be the case here. the intent of the code is met. the appellants other main argument concerns a conversion of a noncomplying use to a

residential use. and argue that it does provide that you cannot enlarge of the structure containing the use. that section doesn't apply. we are not operating within the existing building, the building will be demolished, and to the new building is required to comply with all applicable planning code controls, and it will. the remainder of the appeal raises no issues or identifies any factual or legal error in the lod. for these reasons, we asked the board upholds the lod and deny the appeal. we are available for any questions or discussion you may have. thank you. >> vice-president swig: i've got a question. so, the brief was kind of difficult to go through. and there is another brief after. trying to figure out if the cfc said there was no residential use, why would your client

acknowledge or agree that there is residential use on the property? >> they thought it would be a means of resolving the appellant's opposition to the project, and so -- >> was that negotiated with the appellant? >> we discussed it with them and agreed we would move forward in that way but they continue to oppose the project. >> okay. thank you. >> okay. thank you. we will now hear from scott sanchez. the zoning administrator. >> thank you. good evening members of the board. i am from the planning department. the board often hears appeals of a letter of determination but maybe none quite like this. in this case, the appellant, the neighbour of the subject project filed a letter of determination request seeking clarification about code provisions pertaining to an active development on the site next door. letter of determination is not

an entitlement. it does not allow someone to construct anything in seeking reification of code requirements. we routinely advise requesters when there is an active entitlement project that if they have questions or issues, or would like to appeal determinations related to project entitlements and that process, it is best done as part of the entitlements for the project. whereas a letter of determination creates a new appealable determination, independent of the actual actions we take on the entitlements on the building permits. unless we are before you for the appeal of the letter of determination. the appellant claims that this appeal process, by nature of the letter of determination, i would argue that it does not. i think the parties have mentioned some of the venues they have already been before. this project dates back to 2,008. ten years later we are coming across the finish line. in the last few months, have had

hearings of the planning commission for the conditional use authorization, as well as the dr that was on the rear building for the addition of the adu. there was an appeal of this eu to the board of supervisors which unanimously denied the appeal, that was the appeal of the cu to allow the demolition of the building. the variance decision deals with the project that would be constructed where that building would be demolished. and the new construction that would replace it. the variance is required for that. i have trouble with understanding the extent of the appellant's argument, but the process that they outlined, and yes, i work at the planning department, this is an absurd process that they are putting forward. they would have you somehow obtain the building permit to construct the new building before you get, or are allowed

to get the approval to demolish the building. so you would have -- i still don't know how that would work, exactly. and in some cases, the new construction wouldn't even require a planning commission review. they would expect we would send that notification for a new building that goes where an existing building is but no reference of that building to be demolished. whether it sits on top of that building or not, it makes no sense to me. why anyone would want to go through the process of getting a new building without knowing they have some chance of demolishing that building. i agree with the property owne owner's council that what is in the code today reflects a long-standing zoning practice. it is to deal with vacant lots. it is time for new construction to the demolition so that we don't have demolition and maintaining vacant sights without any plans to put something back end. that is why it gets tight together. the appellant didn't reference, but in section 317, it requires

that is part of the demolition, as part of the cu and when the commission is considering the demolition, they have to consider the new construction. it does tie it together there. i know the code can be complicated and convoluted, and at times, but we do apply and interpret it consistently. it has been done this way for decades. the appellant argues that we cannot have a cu hearing at the same time as a variance hearing. there's nothing in the planning code in section three '05 which discusses variances and schedules of hearings. it explicitly states the zoning administrator is responsible for setting the time and date of these hearings. it does not say that these hearings can't be held concurrently. certainly, and sometimes, given the process, we may have a variance hearing before a planning commission considers an item but we very often, you will see most of the downtown projects that will have their

planning commissioner view. it could be a conditional use authorization or a downtown authorization at the same time, they will have a joint meeting on any variances. there has been a long-standing process for decades to have the variances hurried at the same time as other authorizations. it is nothing new or a legal. it does not comprise any one of their rights. they still have the ability to file all their appeals. as they have exhausted their appeals, or maybe a few more appeals to come, but they certainly have made use of all the available appeals including requesting the letter of determination that they can then appeal and bring it before you for review. again, in summary, for the letter of determination, it is correct and accurate in the representation of the planning code and how it is properly applied, and i will leave it at that. i know we will have another item on the variance and i will

address any concerns related to the project of that. thank you. >> vice-president swig: i've got a question. first of all, i would like to compliment you how you can take four months off and not skip a beat. i'm very, very impressed. but going over the briefs, i did note this project has been going on for a decade. i know this is specific to the lod that is before us. but, you know, the question would be, how familiar are you with this project over the last ten years? >> at least since i became zoning administrator in 2010. i thank you for the compliment. i feel rusty. >> you are not. [laughter] >> i can answer questions about the history if you like. >> i mean usually go through the briefs but i did not actually see that. >> i don't think it went into much detail. it was a reference that had been about ten years, but as i recall, when it first came in, there may have been a proposal to subdivide the lot which would have needed a variance for lot

size. and then build a new structure at the front where the existing nonconforming, nonconforming uses that would go at the front, and they would keep the two units building at the rear. they were doing the lot subdivision, because at that time, and given what we knew about the property, it was understood the front building didn't contain a residential units. and so they would need the variance to subdivide the lot to get the density requirements. two units on the back building and when you knit on the front building is what they had proposed. we gave them feedback that we were nonsupportive of the variance request for the lot area. so i think, at that point, they revised it to go from 2-1 in the rear building to merge units and you have a new building at the front with one units. keeping the density and not doing the subdivision. keeping the density at two uni units. a few that was a few years ago. and then, in the lead up, the

issues were raised about a potential unity in the front building and the appellant had raised concerns about that. the loss of affordable housing. inspector duffy knows more detail in the history of that, but ultimately it came about that it was a legal units. and under the planning code, they can designate, as a conforming units, they can demolish and rebuild that and keep the density at three units. there was also concerns raised by the appellant and by the department about the loss of what would have been a rent controlled units. that has been the proposal to add the adu to the rear building. there is no net loss of rent-controlled units. at the end, we have from five units on the side and the current proposal that was reviewed by the commission. >> thank you. i just wanted to see how rusty your brain was and it is not at all. >> you can correct me on any of the date other -- any other of

the detail. >> thank you very much. i short of -- sort of her reca recall, quite a while back, we had cases that asked for a condition that demolition doesn't occur until a building permit is issued. you are saying 311 specifies that the demolition permit cannot be issued until the building permit is issued? >> section 311, and a similar language in section 312, ties the final approval of the demolition permit to the final approval of the new construction permit to ensure there is no loss of a structure. i believe the actual language, which wasn't highlighted by the appellant in their brief, is it does not even that broad. it applies to architecturally significant buildings. there is a subset of projects. there is actually a broader

interpretation. basically, applying this role -- rule citywide. through that interpretation, we apply -- applied it citywide that we do not want the demolition permit to be issued until we have issuance of the new construction permits. we have done this. we had projects that were trying to come through. we had everything ready for the demolition permit. it is easier to get and we have had to work with the department of building inspection and have them hold the demolition permit until the new construction permit was ready to be issued. >> president fung: i was thinking ck to before passmore got there. the 18 hundreds. >> thank you. >> thank you. any public comment on this item? seeing none -- >> president fung: we have on one. >> i'm not sure if i can speak.

i will ask a question. i was hired -- >> vice-president swig: you aren't you a representative of the client? >> no, i've been terminated, quite a while ago. >> vice-president swig: how does that work? >> i was terminated over a year ago. >> this is related to the work of the property? i don't think it would be appropriate for him to testify in public comment. >> i just want to get something clear about some of the nuance. it may not matter. >> vice-president swig: i think if the counsellor wants to give you time under their time. >> i doubt it. >> okay. thank you. ok, so we will move on to rebuttal. mr patterson? >> thank you commissioners. just a quick objection for the record. mr pesca veg is not part of the appellant team at this point.

i don't think it is right to exclude him from public comment. but i will see if there is time. >> president fung: but you are not in disagreements that he was previously -- >> he was previously. i don't know if he was actually paid to engage. >> president fung: ok. >> i could -- if i could have the overhead, please. commissioners, you have in your pockets, a declaration from thomas gilley who lived in the neighbourhood and was familiar with the residential use of this space while the project sponsor has said that there is no potential units, this is curre current. as of his recent declaration in these photos. showing a full kitchen, a full bathroom with a bathtub and a shower.

it is still in this condition and can be used residentially and it should be. that ten year time period of this project, that is not they are doing. the sponsor run -- ran into the recession in 2,008 and there was a long delay. they'd come back with a number of different oposals and iterations on this project, trying to find one they can navigate through their code requirements. our opinion is they still haven't found that. they said the residential use was removed by a building permit in 1980. you notice they didn't put the permit up on the overhead because the permit does not show residential use being removed. it was to expand to commercial use. that permit didn't do that and ddi made the determination, open -- ultimately there is still a residential units there. this quote unquote compromise in replacing a rent-controlled units as an adu, this is not authorized by the code. there is no such thing as

replacing a rent-controlled units. they are demolishing a rent-controlled units and creating an adu in the basement of another building. not apples to apples. it is not preserving a naturally affordable dwelling. section 311, even if, for the sake of argument we were to accept that you cannot approve the building permit application before the see you, the variance should still be, must still be approved before this eu. it. it is quite clear in the code. if you overturned the letter of determination tonight, then what can happen, and what should happen is that they can build their new single-family home in the existing envelope. the planning code refers to the conversion of nonconforming uses to residential uses. it explicitly says that the nonconforming use is eliminated by such conversions provided

further that the structure is not enlarged, extended, or moved to another location. in black and white, it is a real project here. thank you for your time. >> president fung: just to clarify your comment from that photo. are you saying that units could be a residential use? or it is a residential use? >> it is legally a residential use. they're renting it out. >> president fung: ok. >> thank you. >> thank you. you have three minutes. >> i would just address one more time, the issue of the residential units or not in the castro building. we have acknowledged it for purposes of this project, and the approvals. and it's existence, or not, does

not exist for change or the legality of the lod. so we ask that you uphold the lod and denied the appeal. >> counsellor, in your brief, it is mentioned here in 1980 a cfc was issued in regarding to know residential units. building permit. why is it not in the brief, was there ever a report that was done to this property? cree. >> so, when my client first purchased the property, they requested a report for the castro building. >> when did they purchase it? sorry to interrupt. >> and so they proceeded with the project under that

conclusion that there was no residential units there. and it was, as this -- it was as this project was nearing the planning commission that mysteriously a report was produced for the castro buildi building. he requested it as a member of the public. as a surprise to us, so then we went back addressing the possibility or not of the residential units in the castro building. >> so there was, so what? did you request a report? how does the report come to play here? >> it is a mystery to us. >> i will ask the debit -- the billing department. >> thank you. >> mr sanchez cree.

>> i am somewhat confused by the appellant's arguments because the fact of there being a units in that front building is being conceded by all parties. we had the conditional use authorization to demolish that. part of that project is to build a new dwelling units there. i do not understand the issues they are seeking to raise by their comments. for our purposes, we have acknowledged it and to the appellant, as a residential front building, they can, under the planning code demolish that with a conditional use which they have received. they appealed to the board of supervisors which upheld it. they are seeking a replacement project to go on that sight. that is what the variance deals with, allowing an encroachment into the yard so the new construction -- for the new construction.

the permit holder does have the ability to designate where they are conforming and nonconforming is under the planning code. they are legally three units on the site. rh to allows for two dwelling units. they can designate that units which we all agree exists in the front building to be one of the units. there will be and nonconforming units at the rear building which cannot be missed -- expanded in that area. this building, which is more conforming in terms -- complying, edges a buildable area. the other building is at the rear of the lot within the required yard. it makes more sense to have this be the conforming units in the planning code. everything up there that they are proposing here complies with planning code requirements, and they have a variance for the rear yard which is up next. >> vice-president swig: are you done? >> yes. >> vice-president swig: the counsellor brought up a point in regards to the adu.

we've had quite a few of these recently. the code is not really clear. it says it cannot be relocated to another property. >> but they're not doing that. can you elaborate? >> what they're doing -- so the project -- the demolition of the rent-controlled units, which their planning commission approved in the board of supervisors upheld, they are rebuilding a building there which will go back in its place separately. they are doing an adu. that is part of -- they're not relocating the rent-controlled units. they are adding an adu which has of the net effect of not reducing the number of rent-controlled units on the property. >> they approved to remove the rent-controlled, what part of the deal was putting the adu in another units. >> which was a separate units. >> vice-president swig: so it is one parcel? >> it is all in one lot. >> president fung: they can put it anywhere they want, actually.

>> they could do it. >> vice-president swig: can you give me -- help me get a little educated. so, growing up here, the store on the corner, with the owner of the store living upstairs, was not an unusual thing. i grew up on 29th and lake and on 27th and lake. it has been replaced by an apartment building. they ran the story. the courses lived upstairs. it was the same. and somehow, i am going to conjecture that was like this one we are talking about tonight. it was like that and many others around the city.

i want to -- one does, i'm trying to, they may not fit in this conversation, anyway, but, when there is an evolution, like there was here where the entire building is taken over by a single tenant, which happens to be a law firm, and they abandon the use of the residence for a long period of time, what happens with that rent-controlled status, or why is it a rent controlled in the first place if the store, again originally the store owner, again you can check because i have no fact on this, i'm just going from a personal list. when the store owner and his family lived upstairs and it was all part of a package, where does the rent-controlled peace

ever stop, or where does it ever start? what happens when it is abandoned and how do you restart the clock on the rent-controlled peace? >> the rent control is judgement of determination on whether something is rent-controlled or not, is under the purview of the rent board. i can explain my primitive knowledge of rent control ordinance. i think why we would say the rent control applies the property here's the buildings were built before 1979. as well as of the multiple units. there's two units at the back and one units at the front. they look at the units on the entire lot, not just the number of units in the entire structure. we would say rent-controlled would apply here. rent-controlled is not expired by the fact of units not being rented out and it was through the diligent research of the appellant that it was found that there was residential use in the front building and that is where we are today.

they have responded to those issues and they have obtained the proper authorizations from the planning commission and the board of supervisors to demolish that rent-controlled building. spee. >> vice-president swig: again we don't know and we don't have facts because they weren't presented to us, but if the retail store, let's say, again that the retail store owner and their family lived upstairs in the residential units, how do we separates the residential units from the retail store? why wasn't it considered one higher as an extensible units? as it occurs now, it is one entire rental units and doesn't include a residence. >> it is a fairly common condition in the past. but not so much anymore. the planning code does have certain provisions for dwelling units.

as a manager units, et cetera. under the operativecondion of the planning code which is section 317, dealing with residential use, it is a fairly broad definition. this would fall to residential use being an accessory to the retail use that was there. and bringing it full circle. you can look at something like 1049 market which had uses that were converted from process to residential uses. >> vice-president swig: back and forth, back and forth. >> it is a fairly broad definition. it triggers what is there and the evidence that we have triggers 317. the conditional use, which they have obtained to demolish the building. >> for clarification, to make sure my interpretation is correct, distance, your position, even though it is two buildings, it is all part of one compound on one lot. therefore the moving of a units

of residents from one building to another, that would be the addition of an adu to the existing apartments in the other building. it keeps the account the same. it would be all kosher. >> yeah. a little bit different than that. under the adu provision, you are adding an adu that is subject to rent-controlled. and we know from the number of units at the age of construction, they are subject to rent-controlled. those facts make the adu subject to rent-controlled. it is something, you know, i think a consideration of the applicant to make, given that they would be removing our rent-controlled units, they were going to provide a new rent-controlled units through the form of an adu, in the rear building. >> vice-president swig: it is your position that by removing nothing, they are relocating the

rent-controlled units. >> it is not necessarily relocating. we see it as a before project where there is free rent -- three rent-controlled units and there is an after project where there is three rent-controlled units. >> vice-president swig: all right. we are saying the same thing. i am just raising it differently. >> we are not approaching it as they are relocating the units. they are adding a new separate adu as a separate permit. >> vice-president swig: it would be like if there was a renovation of an eight units building, and the rent control units was in the basement, and we are relocating it to another part of the building. it is still one and the same. there is still a rent-controlled units. that is what matters. >> because, under the planning code, there is legally three dwelling units there, at the end of the day, those three units will be sustained, by the adu is actually a new units. we are treating that as a new

units under planning code provisions for density. >> vice-president swig: thank thanks. >> okay. commissioner? >> i had a question regarding the cfc and the three r. report. what is confusing, you know, i am in real estate as well. you have no units on their. and the counsellor is saying that that was incorrect. and the other question is that when the client purchase the property, they do not have a three hour report. i have stated that he provided a three hour report. do you have that? are you aware of that report? >> a few years ago i was dealing with this property. i am familiar with it. i have a pretty big pile on this one. it wasn't a building permit.

i go off memory. i remember making the property owner at d.b.i., and i went to the property, and i looked at it. to be honest with you, it looked like a law office. he walked up to the back and there was a kitchen and a bathroom and a toilet, just like the photographs show. i saw a 1980 permit. i don't think it got a cfc. we had to give it a cfc. it seems really easy to me. after that, of course, all the fun started. it started, you know, mr patterson, you can't do this, you lose a lieutenant -- a units. the owners then said, you know what? we will just cancel this permit. the question about the report, at the time, i was pretty upset, because there was a three r. report and then there was suddenly another report. it was attained and i would say,

in a way that wasn't normal. and a form where you fill in there request you submit to d.b.i. the form was altered and a box was added where a member of the public requested the three r. report. that was totally against our rules. it was a new employee. the report was then given and it wasn't right. there wasn't words spoken about it at the time and we did not take any action on it. that was created. i don't think, we wouldn't do it again today. the manager of microfilm at the records management was upset about it as well. i remember in 2014, probably we are talking about -- >> as a realtor and pulling many reports over the last 20 years, i know they don't just give them out. so the policy is, is it project sponsor and their

representatives? and you have to bring a paper and indicating that you are a representative of the project sponsors. am i correct? >> going off memory, i believe you are correct. it has to be the owner or an authorized agent of the owner. in case there was another fine added. >> i i'm sorry i don't have that with me tonight. at the same time, thanks for asking. >> to i. -- thank you. >> the reason why i am asking this, is because there is a cfc and a three r. report, and now inspector duffy said there are two or three r. report. >> can i expend the history? >> no, let me ask the question here. the question is, inspector duffy just said, did you pull the three r. report? >> i pulled the report on the

front building. and none existed before i pulled it. that is the three r. for the rear building. >> when you pulled it, were you a representative of the property owner? >> no. >> how were you able to pull that? >> i contacted a previous deputy director of the building department and asked to is in charge of that division. are those documents public? i was told yes. >> which they are not. >> that is a disagreement that i have not litigated yet. because i believe they are public documents. i believe people have a right to know how many units are in a building. because of this, there is a units being saved right now. i added my name. i did not hide anything. i put my name there -- >> as a member of the -- public? >> yes as a member of the public. i am proud of it. there is a units going back there. it may not matter and that is the point i was going to make. they're transferring one units over.