setback? >> i mean, this is a rear yard variance and if you move it a foot or three feet -- >> it doesn't matter? >> i think there could be a concern potentially with regards to usable open space if it's moved back too far back. for the usable open space. but, i mean, i think that it were to be moved back nine feet it wouldn't become -- it wouldn't violate the code in other manners other than the rear yard which is the variance. >> vice-president swig: which is before us anyway. thank you. >> i might remind everyone that this is an appeal of a variant. however, it has been brought to my attention that in two previous variance cases where i voted for the variance i then voted against the project. that didn't make much sense. however, the suggestion had been

made to b me that we're acting n a variance but that the commissioners might want to voice concerns should this go through and into a site permit appeal. >> commissioners this matter is submitted. >> president fong: i have business for mr. sanchez. there's in municipalities that use imaginary property lines to look at certain configurations. we don't have that, do we? >> it sounds fantastic. [laughter]. >> president fong: no, like in an l-shape, if these were lega legally sized potential lots it could have been subdivided. it could have been, obviously, a

property line would have been created to create two linear lots. and there's a couple minor sections of the code. planning does not use that at all. >> not that i can recall. i mean, it's just a question, you know, usually the only time we look at property lines is someone wants to come in and alter the property lines and sub-divide the lot. and then we're looking at how the code requirements would be applied there with the minimum lot sizes. >> president fong: thank you. >> okay. >> clerk: commissioners, this matter is submitted. >> president fong: commissioners? >> i guess that i'll start. i'm not going to get to the point of being able to make a motion. i'm just going to share some thoughts. first of all, i'm uncomfortable

that, in fact, the development on this very, very narrow lot and in its position is upholding the protections offered by the historical designation of this property. and it will -- that this building would denigrate, i feel it would certainly denigrate the property as an historical resource. secondly, if -- i would like to have a discussion about if we were to move forward, the consideration of a further setback, at least if it's going to denigrate the property in my view, at least it will be further setbacks, and there would be very viewpoints from the sidewalk. but in any case if we are to move forward and approve this

variance that along with that that there be a permanent restriction on the sub-division of -- of this lot. so that this tongue lot doesn't become a separate -- separate parcel and that additional house is sustained as an adjunct to the existing house. but i -- i can't move it further any forward to that. i look forward to anybody else's conversation. >> so as far as var variance goi do strongly like the fact of creating new additional housing in san francisco and what we have in what is unused space. at the same time the bar for variance is a little high. i think that i would support the variance with the removal of all property line windows so that

the impact on the byrd residence or byrd home would be less and that's just only because, you know, i believe that the project sponsor is getting a good deal with the variance. also i would support my vice president in the fact that i would have a special deed of restrictions that in perpetuity the lot would not be split. >> president fong: i think that if we go through some of the major points that's been brought forth, first let me discuss the five findings for the variance that have been met. the issues, however, that have been brought up that go beyond what just the variance is -- let

me make a couple statements. one, the ownership, historical ownership of the property, that argument has no traction with me. the argument of whether a modern facility adjacent to an older facility, that argument has no traction with me either. how well it's designed is something that could be handled in a variety of many different styles and many different styles could have fit in here as a building. what has traction with me should this ever come back is that the utilization of openings at the property line is meant to take advantage of the setback in the

garden of the adjacent structure. i may not ask for no openings, but i think that i would definitely be looking at a better modulation of openings in the level of privacy that may be wanted and recognizing that property line windows is something that i railed against last time. however, it is in our building code and it's allowed. >> so i largely concur with the president and i have concerns about whether a notice of special restrictions or some other requirement is appropriately tied to a variance and would potentially ask our city attorney about that. >> i think that it would be okay in this situation. >> president fong: you would? >> i think that it would be okay in this situation. it would be more normal on a site permit, but you could do it

here. >> there's a good chance that this will come before us and i can't imagine they'll build a structure that is on a property line without having to meet access from the adjoining neighbor who is protesting the permit now. so i imagine that this is probably -- we haven't seen the last of it. >> suggestions, mr. president? >> president fong: does anybody have a motion? >> i need some help from the city attorney or certainly from the president. i would -- i would move in favor of the variance but with the -- with the restriction -- the added restriction of permitting ability to bifurcate the property in any way.

>> i think that the motion would be to grant the appeal and uphold the variance on the condition that a notice of special restrictions are in place for the deed for this property that pr prohibits the further sub-division of the lot. >> i knew that you'd do a better job than i would, thank you. >> that would set aside the five findings in the decision. >> vice-president swig: thank you very much for your help. >> and nothing regarding the windows? >> vice-president swig: if you would like to add to that i would be open to any of the adjustments that the commissioners would offer. >> i don't think that we'd have removal for all but maybe some. that is when i point to our president for some help. >> president fong: i think that condition is difficult to add to a variance. >> how about at least, if possible the directional glass.

they said they were open to th that. >> vice-president swig: the problem that i see is that this is a variance hearing as opposed to approval for the building. so we're not really talking about the building. if we're going to see it again anyway and if the property owner next door at the burke house comes back and says i don't like the design, then we're going to see it again. >> president fong: and too that the d.r. denial is not appealed. >> scott sanchez, planning department. the site permit has not yet been issued so it's not yet up for appeal. >> so the window issue -- >> it might come up later. so as it stands -- >> i support that motion. >> thank you. >> so we have a motion from the

vice president swig to grant the appeal and to grant the variance on the condition that it be revised to include an n.s.r. placed on the deed, restricting the splitting of the property. and on the basis that this would satisfy the five findings articulated by the zoning administrator. that motion, president fung? >> president fong: aye. >> clerk: commissioner lazarus? >> no. >> clerk: commissioner honda? >> aye. >> clerk: that motion passes with three votes. those are variances issued. we will now move on to item number 6. this is appeal 18-088, robert selna, versus zoning administrator. 1190 bryant street. appealing the issuance on june 4, 2018, of a letter of determination which found that the planning department properly

placed the proposed project to establish a medical cannibas dispensary at the site on hold due to nonhad of compliance with the application requirements of planning code section 202.2. this is record number 2018-003933zad. and we will hear from the appellant first. >> good evening, commissioners. my name is robert selna. i'm an attorney at, a land-use and real estate attorney. i represent an entity called bmiz-1, and they're the appellant and i'm just representing them. i want to give you a brief overview of this matter and go into details. there's not a lot of precedent for this question before you it. relates to very new legislation and a very new modifications to the planning code in light of that legislation. so bmiz-1 is the property owner

at 119 bryant street and they applied for a medical cannibas dispensary, and they followed the rules and paid the fees and they had every reason to believe that they'd be issued the permit with the feedback they had been getting from the department of health. the process under the health and the code was a brief review and going to the planning commission for a site plan application. going back to d.p.h. for a hearing and then later once the medical cannibas dispensary permit was issued, the applicant was eligible to convert it to a retail cannibas permit. the reason that there was the conversion opportunity was that san francisco had had medical cannibas regulations on the books for some time and then later started to draft commercial or recreational cannibas regulations. and so the city created an opportunity to convert from medical to commercial. a moratorium on the cannibas

application processing and new legislation creating the commercial cannibas regulations in 2018, slowed down the bmiz-1's processing and it changed some of the rules for application processing generally. it's important to point out that the board of supervisors wrote that legislation that made the changes relatively hastily and they actually made some mistakes and ended up treating some applicants inequitably in comparison to others. there was also confusion at the planning department, understandably, about how to implement this legislation. i believe that it was this confusion that led to the department canceling bmiz-1's hearing before the planning commission twice and then canceling it all together. in doing so the planning commission chose one planning code section that was on the books over another and in doing so that deprived the bmiz-1, the applicant, of an application path that it was entitled to

under both the health code and the planning codes. again, this was brand-new legislation and the planning department was working to understand it. but as you might imagine it was difficult to sift through. as a result we believe that the zoning administrator's letter of determination, which you have, was an error and an abuse of discretion and we urge you to remand this matter back to the planning department for a site plan discretionary review hearing that the planning department originally scheduled for february 22, 2018. after the legislation had passed. specifically the letter of determination procluded bmiz-1 to follow the path by article 33 of the health code and section 190 of the planning code. instead, determined that section 202.2e of the planning code governed, despite the fact that it conflicted with section 190 and it was impossible for the applicant to comply with. it was impossible because the planning department interpreted

section 202.2e to mean that an application filed by bmiz-1 eight months earlier could not be filed before an application with the office of cannibas. now it was impossible to file any application with the office of cannibas. that application hadn't been created. and it wouldn't be created for well after a period of time that bmiz-1 had already filed its application with the planning department. so that requirement is really factually nonsensical and it should not apply. the horse was out of the barn by the time that bmiz-1 applied in may 2017. again, the legislation wasn't passed until january 2018. it would have been one thing if bmiz1 had submitted the application to the manning department after january 2018, after the legislation had passed. but, again, that was not the case. in ruling this way the planning department is trying to undo

something that had already occurred. to do so would be to perpetuate a hit to the cost of bmiz1 and not consistent with the legislation. a more reasonable interpretation would be that the applicant had not applied to planning before january 2018. and then they first would have to apply to the office of cannibas but that was not the case here. finally, the planning department's decision contributed to what has been somewhat of an inequitable process for bmiz1 and other applicants, some of whom were held back by the board of supervisors' moratorium on cannibas application and while others who had hearing dates at the planning commission were allowed to go forward. there was no explanation provided in the moratorium for why this treatment of the -- the different treatment of the applications was done and it doesn't seem to have a rational basis. at this point i want to pause and i want to apologize to the planning department because my

brief to you said that the planning department made the decision to allow some applicants to go forward and to hold others back. i was wrong. there was an amendment to the ordinance of the board of supervisors past that actually made that rule. so i wanted to formally apologize on the record to the planning department. i already have to mr. sanchez but i wanted to get it on the record. nonetheless, that decision by the board of supervisors to include in the legislation the two track process for those that had a hearing date and those that didn't has harmed the applicants who didn't have a hearing date at the hearing commission. bmiz1's application was delayed and the cannibas legislation was approved. that led the planning department to cancel bmiz1's hearing in effect. so, quickly, i want to go to the brief history here. it doesn't look like you can really see it. but critical dates are, again,

bmiz1 filed an application with the department of health way back in may 2017. it then filed an application with the planning department as it was required to do under the health and planning code, also on may 2017, with the planning department. in september, the final version of the moratorium was... >> president fong: this is your last line. >> if you fast forward to march 22nd when bmiz1 was scheduled for a hearing before the planning commission, that was a full eight months after they had applied. >> president fong: you will have rebuttal time. but i have a question for you. >> sure. >> president fong: this case was confusing me. >> it's confusing. >> president fong: and there was no brief from the department. but let me ask you this. one, this board cannot remand

back to the department. secondly, the l.o.d. is not an entitlement. if we were to overrule and void which we have bee done in the pt it doesn't create an entitlement for your client. >> um, i'm not arguing that it creates an entitlement. >> president fong: that's why i'm confused by what would the overruling of this l.o.v. mean? >> well, a couple things. i believe that it could be remanded to the department given the circumstances that we're here under. secondly, there are few choices available to my client given the circumstances. we've gone through a process that the health code and the

planning code laid out. that process was interrupted and interfered with and we believe wrongly so. >> president fong: i understand. >> this is the alternative route that, a, i believe was available. b, the planner that i was working with at the planning department believed was available. >> president fong: okay. >> if you know of another route i'd be happy to entertain it. >> counselor, the numbers that you showed, i don't remember seeing that in your brief. is it in your brief somewhere should. >> which ones? >> the ones that you showed on the overhead. >> i mention them and i don't lay them out in order like that but i can provide a copy for you. >> thank you. >> sure. >> thank you, mr. sanchez? >> thank you, apologies for not submitting a brief. i think that our all right of determination was clear with the application of the relevant code requirements. this is not the first appeal of

an item that this board has heard but it is an appeal of a code section that the board has never heard of before because it didn't exist prior to the beginning of this year. we had a very robust process for developing and implementing the regulations related to retail and recreational cannibas as a result of state law changes. last year legislation was initiated i think in september. there was some less a few days thereafter, and the planning commission heard it in october. went on to the board of supervisors which i think that in total had maybe six hearings on this. it's a comprehensive piece of legislation and it's more than one piece of legislation. it amends the planning code and it amends the admin code and the health code, the police code. there are multiple changes to the legislation, even after it went to the planning commission.

section 190 was significantly amended and there was a section 191 or 191.1 that was added after the planning commission hearing. but we are required to apply the law and as you know we look at law of the day, unless there are grandfathering provisions. in section 190 it does have grandfathering provisions, however, it does not exempt the applicant here from all of the requirements. it exempts them from one requirement, a locational requirement, in section 202.2. and there are other requirements, including an application. it's my understanding they are seeking an application. their goal is to offer retail cannibas. you can only get that license by having a permit from the office of cannibas. so there's no point in us reviewing an application if they don't first file with the office of cannibas. i understand that it does seem a bit bizarre that we're asking them -- the code says they should have filed that before we

received the application. well, i mean, that code didn't exist at the time they made their application but we're required to apply the law of the day. so come the 5th we are required to do that. i understand that early on there was not an application, but my understanding is that there is an application now and that they actually have applied with the office of cannibas. i think that they're working through that application process now. one of the things is that they believe in 2018 only they are accepting applications for equity applicants. so their original application would not have complied with the equity applicant requirements. so that's where they prefer to go forward with that and they had to change their business plan in order to make the application that's available now work. and so they're going through that process and they'd certainly prefer to not have to do that. i understand they'd like to have their original kind of business plan. but now they're forced through the equity applicant. i would agree that these

amendments in effect are not perfect and that, i mean, they are certainly -- the clarifications would be very helpful. it's my understanding that there are early discussions and discussions about amendments to section 190. and maybe other code provisions. this is not unusual. we have a pretty unique and comprehensive set of legislation being found after some time of implementing it, that there are things that we think that could be done better and clarifications that are needed. so i think that there will be legislation in the coming months that will address some of these issues. i think that is probably a better vehicle for the appel act to make their arguments. and there's a legislative fix that allows them to operate as they would like to operate. but i think that as the code is written now it is clear that they're required to file that application. i think that our letter of determination is accurate. that's what the code says, we're applying the code, we can't be

selective. and say that they aren't required to get the file and application with the entity that is going to be issuing them the permit ultimately. i mean, that seems to be nonsense. and if you need the permit they need to file that application which they have now done and they have a path forward. so i'm available for any questions and thank you. >> so what you're saying is that even if the alleged postponed meetings would have occurred that still as a result of that legislation and the law of the day that they still would have been forced to go to the office of cannibas to file for this permit. so even though everything according to what was -- they would have done and they would have had the meetings and let's say the outcome, still at some point there would have been a

major obstacle on the road because it's a new law? >> yeah, and that's why -- they didn't have their hearing. and they didn't have their hearing at the planning commission, you know, for a variety of reasons. the interim moratorium that the board of supervisors introduced is certainly one of those. but they didn't have their hearing by january 5th and the law becomes effective and we applied the law. the law says that you need to have applied with the office of cannibas for this permit. that's what we tell them they need to do. and that's where we are. and even if we did have a hearing on this at the planning commission we would have advised the commission they're not meeting all of the requirements of section 202.2 because they haven't made their application and that's where we would have been. >> vice-president swig: so your point is they're a victim of circumstance and a victim of a change of law which -- which changed the rules due to the change of circumstances? >> well said. >> vice-president swig: well said. >> president fong: well, except there is a huge gap from when they first submitted their

application, and they submitted their site plan for review and it's over four months. what does it take to review a site plan for a storefront? >> we have a number of projects that we are already in, and we have backlogs in the quadrants of up to six weeks. and we have been and for some time we have been prioritizing housing projects. this does take some time there. and then we have the legislation that is now developing. it's one thing to say an application was submitted and it's another thing to say that application that was submitted was complete. >> president fong: those are all hypotheticals, okay, i understand your point. >> thank you. >> president fong: back to my point and the question that i asked the appellant, what happens if we overturn the l.o.d. and we void? >> i don't know how we could

take the permit forward to the planning commission when they're not in compliance with the office of cannibas, which is requiring them to have their application submitted. ultimately if their goal is to obtain a permit, i mean, they want to operate, they need the permit from the office of cannibas. so i think that's the issue here. and they have filed now. so we're waiting for the referral from the office of cannibas and then we can move forward with the application. but that's where we are now. >> president fong: as an aside question, and you may not be able to answer it, how can you establish a new agency and then they don't have everything in place? >> thank you. >> clerk: any public comment on this item? seeing none, we will move on to rebuttal. the appellant.

>> in all fairness things sound really clear cut in retrospect. at the time the planning department when they were making this decision was struggling to understand these rules. in answer to mr. swig's question about the fact that the applicant would run into a bump in the road eventually, even they were allowed to go back to the planning department and then go back and follow the process that they were originally entitled to, mr. sanchez says that is correct, they would run into a hurdle eventually anyway. the reality is that four applicants went through the planning commission and are now going to the office of cannibas and getting a permit. they didn't go to the office of cannibas first. they went to the planning commission first. and that's a real distinction

here. so if for whatever way we could get this back in front of the planning department and we could follow the process that we're entitled to under the health code and the planning code, and then we would be in that same exact position and there would not be the hurdle that was presented. the other thing is that mr. sanchez talks about a robust process with a lot of hearings and a lot of departments involved and a lot of time and a lot of time to review this legislation, i'm confused why the planning department then scheduled the applicant for two hearing dates after january and after the legislation passed. so i have a notice here that is a notice for a february 22, 2018, hearing date. the planning department scheduled the applicant for a hearing after the legislation passed.

if the planning department had as much time as it described and as much interdepartmental activity you would have thought they would not have issued us a hearing date following the passage of the legislation. in fact, they issued us two hearing dates on this matter. and then finally cancelled it. and when they finally cancelled it they said section 202.2e says that you have to go to the office of cannibas first. as pointed out that section 190 is in conflict with section 202 even. the rule or the law of the day does not say that you can go back in time and create a fictional circumstance in which you undo an application or an approval that's occurred. the law of the day would apply if this applicant tried to apply to the planning department after january, after the legislation

was approved. and then you can apply the law of the day. the law of the day wasn't in may 2017. thank you. >> clerk: thank you. >> planning department. in response to the law of the day, i believe the four sites that went through -- and i have asked for specifics and in the brief it was alleged that we had violated our rules and we had been unfair. i asked for specifics. i spoke to mr. selna last night and still have not received actually specific applications which i believe were improperly processed. but the board of supervisors in their interim moratorium did at their hearing amend it to say, if you had a hearing date scheduled with the planning commission by september 11, 2017, that you can keep your hearing date and move forward. i believe that the four that happened were approved during that time, during last fall,

before the ordinance took effect in january. so they were heard before the law changed. that's why the planning department, planning commission, could hear and approve those cases. so that's the distinct difference there. second, my comments in regards to the robust process and the numerous hearings wasn't meant to impart the belief that this was perfect legislation or it was crystal clear. in fact, it's the actual opposite. it's the number of amendments that were made through this process to the last minute which i think that resulted in the confusion that we have here. and i think that in all fairness to the office of cannibas, it's one of the reasons that it took some time to get things up and running. because they're basically effective january 5th, and they started as an entity on the same day. and they're responsible for developing it all as they go along. they didn't have the rules until the last minute and then they have to implement those rules

immediately. so i think that, you know, it's not as if there was a six-month period for -- after the law became effective whereby we said this is what the law said and we'll figure out how to implement it and six months later we'll start implementing it. it became effect identify this day and we were dealing with what we had which was just decided finally by the board only a month earlier. so i think that's the reason that we have -- we're in the situation that we are. it's not uncommon to have to make amendments subsequent to make clarifications, and to make improvements in the process, i think that is what we'll see in the coming months. but we have applied this fairly and we have applied it properly. and we are following what the rules say. so i am open for any questions. >> clerk: thank you. commissioners, this matter is submitted. >> president fong:

commissioners? >> it's not a pretty picture but i think that the letter of determination is appropriate. >> i concur. i believe, unfortunately, although there's a lot of gray area, the zoning administrator explained the reason that the prior were accepted is because their date was earlier. and since they do have the application through and the process has changed dramatically, i think that we have to go with the law of the day. >> president fong: well, i'm going to agree with you except for the fact that, you know, the legislative process is seriously flawed in this city. >> but as you pointed out at the beginning of the hearing what is

accomplished. >> president fong: is there a motion? ann? >> commissioner lazarus: i'll move to deny the appeal on the basis that there was no error or abuse of discretion on the part of the zoning administrator. >> clerk: a motion from commissioner lazarus to deny the appeal on the basis that the zoning administrator did not err or abuse his discretion on that motion. president fung? >> president fong: aye. >> clerk: commissioner honda? >> commissioner honda: aye. >> clerk: vice president swig. >> vice-president swig: aye. >> clerk: that passes 4-0. >> president fong: let's take a fi >> clerk: okay. welcome back to the september 12, 2018 meeting of the san francisco board of appeals. we are moving on to item number 7.

versus the historic preservation commission. this subject project is the fulton street right-of-way, issuance to the san francisco arts commission of a certificate of appropriateness for proposed work removing the storage the bronze early day sculpt really group from the pioneer monument. consistent with the purposes and the standards of the san francisco planning code article 10 and to meet the secretary of interior standards for rehabilitation of the property located between the subject block 0353, and 0354. and this is case number 2017 2017-015491coa. h.p.c. motion number 0331. rehearing grants on june 13, 2018. on april 18, 2018, the board voted 5-0 to grant the appeal of the basis that the historic

preservation commission h.p.c. acted incorrectly because their review was inconsistent with the typical review of historic pieces and the h.p.c. did not satisfied standard 2 of the secretary of interior's standards for rehabilitation. we will start now with the appellant. mr. schmid, you have seven minutes. >> thank you. good evening, president fung and fellow commissioners. we're back here again. this is going to be a lot of rehash, but i would like to stress initially something that i think that is paramount here and that is that this is not a ma joamajority process and thist 99 versus one. i don't care if a hundred million people show up here this evening and say tear down that statue, the law is that it stays here.

and until they change the law it stays here. and that law is and i cited in the brief initially and i have re-cited it, the subsection c, subdivision i, it says "no person except an official who owns and processes a work of fine art which the artist has created shall intentionally commit or authorize the intentional commission of any physical defacement, mutilation, alteration or destruction of a work of fine art." now unquestionably, that is a work of fine art that we're talking about. unquestionably what is being done here is at the very least an alteration, if not a mutilation, if not a destruction. so as far as legally, that's it. this commission has no power to allow it to happen. the planning department had no power to allow it to happen.

no one has any power to allow it to happen. that is until they change the law. i would suggest to the opposition, albeit it might be of some constitutional question, subject to the constitutional issues, they couldn't have a better chance, a better shot, you've got two-third majority of democrats in both houses out there in sacramento. well, it might be too late, but presumably he'll get elected and go for it. and have a law passed and remove that statue. that's the way to do it. but they won't do that. they want to come here and to have you, seek you, to have you enforce an illegal act. that's not appropriate. this is a quasi judicial body and you are sworn to uphold the law in california and there's no question that the law is not, beinnotbeing applied here.

but on the philosophical level, aside from the legal issue it seems to me that it's just atrocious -- again, i'm be repetitive -- but it's atrocious that in our open society that anyone would entertain the notion of destroying art. it's disgusting. this is the act of tyrannical people to destroy art. to take someone else's creation and say, oh, we are so enlightened that we have the power and the duty to destroy it. we're the ones that pass the judgment on what the artist meant. no one knows what the artist meant. i have my interpretation and, frankly, it's 180-degrees, far from what a lot of people interpret it. i think that art very much to be interpreted to show that the injustice done to the native

americans here. that's my read of it. but they have a different read. i can't say that their read is wrong. i can't say that my read is 100% correct. but, certainly, i think that they're both within art interpretation. so where historically have we seen art destroyed? certainly not any pillar of civilization, nazi germany? is that -- is that the picture that we would to hold up here? (please stand by).

>> somehow, taking apart the pioneer monument is of no significance. it has no historic significance. look at that. you think these people are here because that monument has no historic significance? when have you ever had that kind of crowd?

when? that is because that is historically significant and it is culturally significant and it causes issues for people. this picture right here identifies asserted in the city 's brief. in the planning cat department brief. it is ridiculous to suggest that that statue is not culturally significant. they want you to believe that, black and white. they want you to believe that. that defies reality. it is almost insulting to put that into letters. just as insulting as the idea that they argue in the brief that the purpose of the -- excuse me, what is the acronym? h.p.c., is taking other actions concerning historic preservation how is tearing down history

taking action to preserve history? it is an oxymoron. it is a total contradiction of terms. and makes no logical sense. that is on page 2 of their brief then on page free just three of their brief, they acknowledge that the interior standards apply to individual landmarks and contributors within the historic district. >> thank you. you will have time. >> thank you. i just want to keep the process fair. thank you. we will now hear from the historic preservation commission mr fry? >> good evening talk commissioners. i'm here with department staff. thank you for the opportunity to brief the board on this topic. the department respectfully request that the board uphold

the issuance of the certificate of appropriateness and is determination of the early days sculpture. they followed standard procedure and the application of the secretary of interior standards. we think it is important to point out that the h.p.c. provided its review and approval for only the scope of work in front of them. that was to remove one sculpture from the pioneer monument. the scope did not and cute just include a replacement sculpture that we would have to review for compatibility and there was no other proposed work to the monument. in san francisco, the standards and doors are applied on the distinct resource and it's associated features. for instance, standards are generally applied through a fine grained lens printers -- individual properties like city hall and then a broader lens for a district that is made up of many properties and features like the civic centre historic district. this is because the district

does not rely on any single property to demonstrate it's significance. rather, it is a collection of all properties as a whole that justify that distinction. so the early days sculpture is one part of the pioneer monument which is one feature of the civic centre historic district. and the civic centre district occupies 15 city blocks, containing prominent cultural and governmental buildings and open space. generally speaking, the standard practice which require the h.p.c. to evaluate this alteration in the context of that entire 15 block historic district. not only the monument or the context of the pioneer monument in isolation. our brief outline several examples where the hbc approved alterations to this civic centre landmark designation as well as designated properties consistent with the review of the pioneer

monument. examples demonstrate broad applicability of the interior standards and confirmation that the department and the h.p.c. applied these standards in a manner that is consistent with the national park service. the standards are not prescriptive and they allow for flexibility in their application on a case by case basis. however, and most importantly, the rehabilitation standards do not prohibit alterations to historic properties. the rehabilitation standards provide guidance on how properties can change and they can be altered while retaining the features that make them distinct and also so we can relate to them today in a contemporary environment. the h.p.c. process decision for removal of one sculpture from the pioneer nonevent -- monument was consistent with the types of changes the rehabilitation standards are designed to address. specifically, removing the sculpture from the area as a reversible action.

here we are not talking about the destruction of a monument. we are talking about the removal of one sculpture that will be treated appropriately in the arts commission that will go into more detail about the treatment of the early days assembly. there is nothing preventing reinstallation our new installation of the sculpture at that location in the future. given the limited purview of the hbc and the small scope of work before them, the hbc acted consistently and predictably end of the application of the standards and in the interest of time, we conclude by respectfully requesting the board to uphold their issuance. >> can i ask a question, please? so you and i had a sidebar conversation prior to this meaningful disclosure. we discussed the very same things that we talked about. i brought up the subject and you

just confirmed what i told you. in that a large historic district is really what we are focused on and one element of that district is not -- one change to one element does not tip the balance one way or another. am i characterizing that correctly clean. >> the historic preservation is looking at the characteristics of the district as a whole when basing it's decision whether or not to issue the cfa. >> speaker-02: so when does one historic elements tip the balance? in this case, we have in elements, forget the subject matter because that is really the linchpin of the energy. it will be around this room today. but when -- what is -- when let

me get ahead of my thoughts. where is the threshold? where is the tipping point when one historical elements, is what having been installed in 1894, and has some fairly historical activities connected to it? not the subject matter but rather a very prominent citizen or a contract with the city? it in itself is a very historical elements. where is that tipping point in that any historical elements is as important to protect as the macro area? as we discussed in you just elaborated upon? >> it is a good question. although it is hard to provide hypotheticals. but certainly a district baseline is much higher than an

impact to an individual landmark property. altering the dome of city hall, that would likely have an adverse impact to that building because it is an individual landmark. if you look at the altar agent in the context of the civic centre district, it may not be detrimental. another example could be if you were to build in civic centre plaza, civic centre plaza is an important public gathering space that would probably be drastic enough to alter the fabric of the district and why it is important. the baseline here is, yes there can be one or two small modifications to a district, but the baseline for when those changes become detrimental, you really have to judge it based on what the reason was to designate that district in the first place the civic centre is still the seat of local and county

government. it still has a lot of wonderful buildings. wonderful public open spaces. i would imagine that that baseline is fairly high before the commission would say, you know, disapprove it for being and having an adverse impact on the district. >> so if there is, this is not meant to be argumentative. it is kind of rhetorical. if there is any ambiguity in this process, which might cause us all to stumble one way or another, it is the clarification of what is the tipping point? what is the importance -- what are the points established? what is that thing, that intangible thing that makes something within a historical district strong enough to protect it from removal or strong enough to protect it from

a higher level of discussion before it is removed? would that be fair? >> sure. the commission needs to weigh and balance the reason why it, an area is significant, with the proposed project before them. as i mentioned earlier in the previous case and the balancing of many other city policies and programs with that. where is that bright line of having an impact to a district or not is really going to be determined on a case by case basis. but we feel the commission did act predictably in it's decision and that they were using their own precedent and our guidelines to make their decision. >> vice-president swig: one other short question, it was fascinating to read in any of the audiences here. it was fascinating to read the history of san francisco and

what has gone into civic centre over the years. i thought this was really cool. this is educating me. i was thrilled to read that. a question that surfaced for me while reading all this, james licht lick gave the city of san francisco what is now a historical elements. is there a contract with the terms and conditions that were signed between the city of san francisco and james that says, i will give you this statue and you are going to -- and the terms and conditions of this are , will play sit here and you will never remove it ever again or you have the freedom to remove it ever again or you have the freedom to remove it from point a to point b. is there -- historically and the archives, is a contract between

james lake and the city of san francisco? >> likely the arts commission will be able to better answer your question as they are the custodians of the pioneer monuments. i defer to them. >> vice-president swig: thank you very much. i will ask them back question or they can, in their presentation, they might want to anticipate and address that. thank you. >> thank you. will now hear from the arts commission. >> thank you. good evening honourable members of the board. my staff has reached out to you as i present. we will have that answer for you good evening members of the board. i am the director of cultural affairs of the san francisco arts commission. in conjunction with their preservation commission, we respectfully request that the board of appeals uphold the hbc issuance of a certificate of appropriateness to the arts commission to remove the early days cultural group from the

pioneer monuments. by upholding the hbc decision to issue deaths for removal of the statute, the board would ensure it does not intrude upon the core function of the arts commission under the city charter care. section 5.103 of the city charter provides the arts commission shall approve the design and location of all works of art before they are acquired, transferred or sold by the city and county or are placed upon or remove from the city and county property or altered in any way. this provision makes clear that the arts commission has jurisdiction, not only over the design and location of the city 's work of art, but also over the alteration and removal from city property which we do often. consistent with the charger, the code reaffirms it's authority in section two a. .150. no existing work of art in the possession of the city and county should be removed and relocated or altered in any way without the approval of the arts commission. the decision to remove the early day statue from the monument fall squarely within the authority of the arts commission

in accordance with the city charter authority, the arts commission has developed positive guidelines for the city civic art collection. these policies address the removal of public art from city property. on october 7th, the arts commission unanimously adopted a resolution requiring staff to initiate the review process described in the policies and guidelines i mentioned. to consider this of the early day statue, staff completed this review process. on march 5th, 2018 after a thorough public process, and the arts commission voted unanimously to remove the early days statue and placed it in storage, not to destroy it until the arts commission could determine the future location. the arts commission based it's decision on significant adverse public reaction over an extended period of time. a clear criteria established in our policies and guidelines. as explained earlier kept, the charger makes clear that the commission had the authority to vote to remove the early day

statue and to elect to place it in storage. not to destroy it. at the heart of this appeal is the challenge it presents to the authority of the arts commission under the city charter. the voters, by enacting the charger, have given the commission democratic responsibility for managing the public art collection, except as to works of art house by city museums which is not a factor here. there are 3.3 commission authorities that their emphasis. first, the charger authority regarding decision, location, alteration and removal from city property of works of art involves core functions of the arts commission. no one could seriously argue that these types of decisions are gentle -- tangential or secondary to the mandated role of the commission. if the board upholds their decision to issue coa for removal calculated avoid intruding on our function. second, there is no provision in the charger granting authority to another body or unofficial over the design, location, alteration or remove visual -- removal