>> okay. we will now hear from the permit holder -- >> it does have an automatic termination provision, as well. >> thank you. you have seven minutes. >> my name is gabriel block, and i'm the owner of crossroads trading element, which is a distinction entity from c.t.c., l.l.c., which owns the property. all the owners of c.t.c., l.l.c. are not owners of crossroads. this was filed solely by the ground floor tenant, crossroads trading company to provide our company with emergency egress. this is required and is a life and safety issue. it's noncontroversial work, was properly approved, professionally prepared and vetted by the landmark association and -- we followed all the steps. this appeal is based on

entirely irrelevant issues. i want to be very clear, there's been no objection to the actual work that we presented to open this section exit for the ground floor. crossroads made no misrepresentations, we omitted nothing from our permit. when a ground floor tenant is seeking emergency egress, the ballet load is not included in our calculations. they have their own egress that was granted to them, as the appellant said, by the appellant. the ballet agreed to be dismissed from the lawsuit in exchange for emergency egress, and it -- i'm stunned to now see these -- the appellant try and say that oh, we gave them inadequate egress. if it needs to be made adequate, then, the ballet and the appellant need to work that out. i'm sure that the ballet would be very surprised that they are

suddenly being told that the -- what they were given in exchange for their settlement was invalid at the time it was issued. i mean, it's really -- to me, it's a very simple review. the permit's a very distinct line of work, and i -- i believe that it's pretty clear-cut and should be approved. if you have any questions, i'm happy to answer them. >> is there anyone from the ballet -- is there anyone that represents the ballet in this room? >> they weren't really a party to this action. neither was the owner. >> okay. >> i have a question. your ground floor space shows a vestibule and an access into the rear which then has access to that site. >> right, and we don't -- we are not able to use that for ground floor egress.

that was part of the lawsuit. >> what's the purpose of the doors, then? >> what's that? >> what's the purpose of those doors? >> in the back? they were originally egress, but we lost that in the case. >> they were original to the building. >> yes. we didn't add that, but i just want to reiterate, crossroads is not able to use those. only the ballet is able to use those -- by agreement with the appellant, able to use that alley for secondary egress. >> thank you. mr. sanchez, nothing to add? mr. duffy? >> joe duffy, d.b.i. the permit under appeal was approved by d.b.i., plan checked, went through building department review. as you can see from the plans, it's only for work on the

ground floor, and to provide that second means of egress. i actually was at this property maybe three years ago on this issue. i believe i met that gentleman, yeah, just as a -- they wanted me -- some advice on this issue, and i advised them that on the ground floor, you would have to provide a second means of egress. i wasn't brought up stairs to the second floor. i came to see that as a separate issue, even though it's -- it's connected a little bit, and in my opinion -- and i spoke to mr. boskovic at the building, if someone thinks there's an error of an exit in the building, contact d.b.i. we certainly don't want anyone with unsafe exiting. so that would be my opinion on that. this is ground floor work, and of course, there is a floor

above it, but that could be treated as a separate issue. and unless -- and i didn't know that there's an agreement between the appellant and the ballet school to use that easement on the side there of the property. the only problem for crossroads would be if they lost that easement, and then, a corridor would have to go into the ground floor of that tenant space to provide access from the second floor occupants through a second means of egress from a rated corridor. they have one means of egress that goes straight up the middle. that's their main entrance and exit. and their second, if they lost that easement -- sorry. i don't know. i'm calling it an easement. some sort of settlement or agreement, then that would necessitate something being used as a second exit. i guess they're okay as long as

that door or that access onto the other property is allowed. >> okay. >> the permit holder has indicated should that lease terminate, then they would have to take care of that exiting at that point. >> and at that point, that could affect that building. >> kind of interesting. we're not exactly sure what the motives are, in terms of this, but you look at the drawing, and they show a dimension for an adjacent property breezeway, you know? >> yeah. it's -- i think it was used for many, many years, but it was e definitely on the other property. >> can i ask a naive question? it seems that the crossroads trading company is a lessee of the building and the ballet school is a lessee of the

building. why is this not a building owner issue? because the t.i., the tenant improvement, is being built within the owner's envelope and certainly would have to be okay to with the owner and certainly would have to be in the context of a totally compliant building. so then, i don't understand why -- why we're not seeing c.t.c., l.l.c., the owner of the building, talking about this activity, and we're not -- only seeing no, we're sorry, this is not the affect intended, and only seeing the lessee. we're not seeing the owner of the building. this is a building improvement, this is not necessarily only a tenant improvement. >> yeah, we see a lot of d.b.i.

tenants do a lot of work in spaces that they rent. and for whatever reason, as part of their lease, it's an agreement they have with the owner of the building. we wouldn't question that, that's entirely up to them how they present that permit. >> but the egress, the difference that seems to be -- this has to do with the building envelope and something that is permeating the building envelope, and something introducing outside around the building to the inside of the building. if it was all in the inside of the building, we wouldn't be having this discussion, but this has nothing to do with the four walls surrounding the building and access into the building. to me, that's an owner's issue, and i'm wondering -- >> i think that's a good question. >> -- where's the owner? because suddenly, this may be -- that easement -- you

know, without paperwork -- if you and i have an agreement, and then suddenly someone disappears, one of the parties disappears, and somebody said oh, we always had that agreement as a verbal agreement, there's no record of that, therefore, there is no agreement. >> i can probably tell you -- >> it's an illegal building. >> what's going to happen is if this other property owner decides to block that door, which is his right to do, someday that ballet school is going to close, not going to be allowed to occupy that space. fire department will do it, any way, because assembly does having adequate exiting, not sure it's going to last very long unless they comply by providing a second code compliant exit. this gentleman has gonna head and taken care of his tenant space -- gone ahead and taken care of his tenant space, but

the owner down the line is going to have to be thinking i'm going to have to take care of that second floor if this goes away. we can't determine that. >> that's what has me scratching my head. thank you. >> yeah. >> okay. thank you. is there any public comment on this item? seeing none, we'll move onto rebuttal. >> thank you, commission. ryan patterson. the judge explicitly found that these two entities are related, crossroads trading company and c.t.c. and in fact treated them as one entity for the purposes of that litigation. so you know, the -- the permit itself says the

owner-contractor is doing the work. i think it's clear that c.t.c.'s building owner is deeply involved in this. to respond to a couple of things, the temporary licensing agreement is not an easement. that was the court's decision, his conclusion, and this is something that has to be solved now or is -- as inspector duffy said, it goes to a complaint process, and the fire department is very likely to shutdown the ballet. so you know, if we were okay with that happening, we wouldn't have gone through with this appeal, we would have just gone to a complaint process. the reason we're here is that we hope the board, we hope today might be willing to just extend that egress corridor back, solve the issue so it's not the fire department solving it with a heavy hand. this protects the ballet. very briefly, in the permit holder's brief, they said that

we demanded a nondisclosure agreement in order to discuss their offer to pay-for-access over my client's property. the reason they wanted a nondisclosure agreement is precisely so they would not show up in a place like this and say we're trying to shake them down because they've offered to pay a licensing fee. at this point, my client has no interest in that kind of an agreement. he wants the properties to take care of their own egress issues, and it's largely a liability concern for him. so i think that's probably about it. you had something else to add, pat? >> this feels like a game of chicken where the owner and us are driving down the road, and the guys in the middle of a bunch of kids taking ballet. and chicken is, do we go to the fire department or we let this happen? and if you go out there, you

look at the emergency exit, there's no signage. there's no panic hardware. there's a step, and the door swings out, which means the first kid falls, they're going to be trampled to death. we're asking you to stop the game of chicken and say fix it. thank you. -- before someone has to be evicted or a kid gets hurt. >> hopefully, that doesn't happen. >> i do want to show you briefly on the overhead. there's this question of the license expiring. mercani makes no reference to the sufficiency or legality of the egress. >> thank you. >> can you leave that up there, mr. patterson? question for clarity. was there a settlement agreement with the ballet for them to use that space? >> exactly, and that was -- that was this agreement that's here on the overhead?

>> so there is an agreement or there's no agreement? >> there is an agreement that gives temporary license for egress if the city allows that, if it's code compliant. we made no representations that it was code compliant. we said that's up to you guys, between you and the city. >> and that is -- that agreement's only with the ballet company, so once that lease expires, there's no means of egress for the second floor. >> i think the first time i heard that you want us to make them put a corridor through their space. it's not in any of your briefs so on what legal basis can this board go beyond the purposes of the permit in front of us? >> so the board has broad, equitiable, power, at least as

the planning commission's, which as we see every week, has authority to make changes to interior and exterior projects. i think it's entirely appropriate to make that egress code compliant. thank you. >> does your agreement apply if there's an extension of their lease? >> it applies to the extent that egress is legal. >> okay. >> and it's not legal. >> okay. thank you. >> all right. >> thank you. >> so i can speak on behalf of the owner. i'm a shareholder in crossroads or c.t.c., l.l.c. to the question you had. there's -- there's no immediate need to address the egress issue on this side of the building for the ballet because

we believe that the agreement that the appellant made with the ballet is binding or could be made binding if and when they deal with that with the ballet. it's not our -- we're not a party to that agreement. but we believe that a court would find it enforceable and do whatever's required to preserve that for the remainder of their lease, which is about five more years. i'm struck by the hypocrisy of the appellant saying it's our intent to close this ballet down. when they make that argument, what they're doing is undermining the validity of the agreement that they made with the ballet, so you can't have it both ways. we will consider in five years what we're going to do with the ballet, but building an interior corridor is not before us. this is moorely addressing a

ground floor tenant egress issue, and it strikes -- mereely addressing a ground floor tenant egress issue, and it strikes me as odd that there's anything else. >> you said the entities are two separate companies, so who applied for the permit because they mentioned that it was owner contractor. >> it was crossroads trading company, the ground floor tenant who's responsible for the costs. >> but when you -- so if you're a mentioned owner, that means owner of the building, correct? >> i'm sorry. say that again. >> you mentioned that you wrote down that it was owner contractor dotion the work for the scope of the -- doing the work for the scope of the permit. >> you know, i don't have that in front of me, but i'm not sure that changes our position. >> but if you're saying that they're two separate entities, if the permit was taken out under the owner, so are they same or different? >> we treat them as different entities? >> okay so what's doing the --

who's doing the work as the owner of the building? >> no. it's crossroads trading company that's paid for it, paid the architect, and will manage and maintain the contractor. >> okay. thank you. >> mr. duffy, anything further? okay. so this matter's submitted, commissioners. >> mr. duffy, just to -- and i'm not asking for your legal opinion, but i'm thinking back to some similar situations that -- i think i recall that for an exit to be legal on another property, i think you require an easement. >> that's correct. >> right? >> no -- okay. i'm going -- yes, you would need an easement. the city, if it was an existing easement, then, that would be something that the city attorney's office would not get

involved with this. now, if you want to create a new easement then the city are actually involved in that, the city attorney's office, and i think somebody mentioned that john malamut deals with that. so there was about five or six years ago they brought in some changes where the city are definitely part of that easement. >> that also applies to opening through property lines and things like that, doesn't it? >> you mean communicating openings? >> yeah. >> yeah. we don't really see many communicating openings anymore. >> so does that mean that this -- that the license -- the license is illegal? the whole premise of what we've heard is there is a license with the ballet school and the next-door neighbor, but if you're saying that you require

an easement for an exit, then it doesn't matter if you have a license. the license was illegal, and the license was issued by one party or signed by the other party without knowing the full context of -- of the law. >> so i'm just going back. was there an easement before? >> apparently. >> there's no easement. >> there's no easement. >> we're hearing that there's no easement that's been filed and on record with the city, so i -- if there's no filing, there is no easement, and therefore, if there's no easement, then, it doesn't matter whether two people they're going to license each other because they can't do it any way. it's illegal. >> if they came to us, we would take the advice of the city attorney's office and guide them towards an easement, but this has been in existence for many, many years, and unfortunately we have thousands of these instances throughout san francisco. it's just common because we've had new owners come in. it isn't the same way it used

to be, and something that wasn't a problem becomes a problem, and they need to go and sort that out civilly, and the city's there to help them, as well. but what i'm being told today at my department is if it's a new easement, it needs to be ratified and the city attorney's office is involved in that. >> so -- so let's take it one step further. >> but just -- sorry. but that is not part of this permit that's under appeal. >> i understand that. i just want to understand what's legal or not legal, get clarification. so if this permit goes through, what i see potentially happening is that somebody files an n.o.v. with yourself or with the fire department, at which point, there's no legal

egress -- >> instrument, yeah. >> -- for the ballet. therefore, that space becomes unoccupiable, potentially, unless -- >> possibly. >> -- unless it's fixed, and so that would -- if that happens, then, that space is just void, and whomever's up there, the ballet or it could be anybody, it's an -- unoccupiable. >> let's be sure. it's occupiable up to the occupant limits for one exit. >> for one exit. >> okay. >> which would not be for what its current use is. so if that use were to continue, and the owner of the building wanted that use and that load to be continued, then, they would have to be able to -- a quarter under a separate permit to allow that separate egress. that's the story. yeah. i just want to get that.

>> just for clarity, for the permit before us, is that second means of egress a legal means of egress for fire safety? >> the new one? >> yeah -- well, the one that's existing on the other property? they mentioned -- >> that serves the second floor? >> i can't remember, that serves the -- yeah, that serves the second floor. >> i'm not sure, there's something about a stairs and -- corridor and no stairs. it swings out over the property. we don't know. >> sadly, different things told to different people. >> i think we're probably going to get a complaint on it. it's going to get messy. that's the way i look at it, if they involve the ballet school at this point, and there's a possibility they'll be cited for violations, which could include use violations, exiting, a whole lot of things, but we haven't received that, so if that comes our way, we'll deal with it.

>> thank you. >> may i ask a question of our city attorney, mr. russy. there's a lot of legalese going on here, and what is your take on this situation? >> you might need to ask a more specific question. i don't entirely understand what's going on with the property owners. >> it's just regarding a lot of legal term for prior stuff was -- was mentioned this evening, and what's before us is really only the corridor. and so -- >> no. >> no. >> the second exit being added to the ground floor. >> right. >> i haven't heard anyone say that the permit itself that is being appealed right now is illegal. >> okay. >> or is not code compliant, and that's the question. >> yeah. >> okay. so commissioners, this matter's submitted. >> okay. commissioners?

>> so i feel like we've been talking about two completely separate matters. >> we always do. >> which happens regularly here. >> okay. i'd like to get back to the matter at hand, which i don't think has anything to do with these other issues, and i'm not going to be responsible -- or i guess i might be responsible for what happens to the ballet school, but that's not before us. >> well, what's before us is the second exit, but is it an exit if there's no easement? >> for this property, right -- not for the -- >> for the ground floor only. >> yeah. for the ground floor only, it is a legal -- it seems to be a legal exit for the ground floor only. >> okay. >> and what is -- what is trying to be thrown at us, i think -- >> is the second floor -- >> -- is another condition in the building that is illegal, and that would be another day's discussion. >> yep, i agree. i guess it now.

sorry -- i get it now. sorry. >> do you have a motion? >> yeah. i'm here to deny the appeal and uphold the permit on the basis that it was properly issued. >> okay. we have a motion to deny the appeal and uphold the permit on the basis that it was properly issued. on that motion -- >> attorney, mr. patterson.

>> okay. welcome back to the september 26, 2018 meeting of the board of appeals. we are now moving onto item number seven. this is appeal number 18-092, mel lee versus building department with planning commission disapproval. to comply with n.o.v. 201786481 proposing to legalize the prior removal of 17 residential care units within a residential care facility, including nine for conversion to two dwelling units, four for conversion to larger space and for four conversion into larger care

space. we will hear from the appellants. >> and prior to starting, i will disclose that we did a noticed duly noticed site visit, along with my director, along with representatives from the planning and the building department, inspector -- senior inspector joe duffy, zoning administrator scott sanchez, accompanying with the attorneys for the permit holder as well as the property sponsor and their manager. >> okay and just for clarity for the record, it was just commissioner honda. the other commissioners did not attend the site visit, so we will now hear from the appellant. >> hi. good evening, president fung, and the respectful members of the review board, my name is teresa wong and i'm the owner and administrator of the avenue and assisted living facility for seniors, which is located

on vanness and geary. we built this facility from ground up on a lot which was vacant for 40 years before me. so we opened in 2004, with a lot of hardship, but eventually, we opened with 124 studio apartments or studio units. and i involved in the management in 2005 because it was managed by somebody else. it was really messed up, so i have to involve. and i live on-site since 2005 in a one unit. i use the other separate unit to put my personal belongings, and in 2006 or '07, we -- i start to notice that there is a

huge need for one bedroom unit when couples, they need one bedroom, or even for single seniors, they always wanted privacy, not just a studio unit. so i convert four -- i mean, combine two adjacent units into one bedroom unit with two bathrooms, 'cause each unit consists of one bathroom any way, so we have four one-bedroom units. and also, on one floor for dementia residents, on that floor, i don't have too many public area for my dementia residents. so i convert one unit on a corner to -- in order to provide comfortable lounging area for the resident and their family, and also, i can have

natural light windows for them, and it very well. on -- and it works very well. on the other floor, i also take three units on that corner that -- to provide more lighting and provide karaoke and -- 'cause chinese community, they want a community floor to sing and play mahjong. and also in 2007, that time, i found out that this be a lot for me to work on this, administrator on-site 24 hours. so i get another person, administrator to work with me side by side, and he's my son. and i'm grateful for that, that he's willing to work side by

side with me, so i connect four units, vacant units on the top floor that has been vacant all the time to put in a one bedroom apartment for him so he can work with me together 24 hours on-site to handle emergency situations such as power outage, water outage. fire alarm went off. especially resident night time, they fall. we are 24 hours facility, require around the clock manager on duty. so that is my management style, and also, now it's validated by the state regulations in 2014, that is required by law, have a manager/administrator on-site 24 hours. in 2017, i decided i deserve a decent unit, instead of one

studio, so i connect five small units to become one bedroom unit. one bedroom, one kitchen, and a bathroom and a closet. i need a kitchen 'cause i haven't been cooking for a long time, so i feel like that is what i want to do. but unfortunately, i didn't know that -- that's my fault -- that i required to go through the planning department to -- for all this kind of connection. but all these walls are nonstructural. we just move walls, nonstructure, to connect units together, and they'll easily be reversed back when that use is no longer needed. so i'm here to ask for -- respectfully for your approval

for my appeal, to allow us to keep the improvement that has been done, and i am -- we will willing to pay for the penalties for the -- for our permit being not processed properly. thank you. >> good evening, commissioners. ryan patterson and sarah hoffman for the appellant. nice to see you again so soon. thank you so much for taking the time to make a site visit. i hope it was helpful. very briefly, there were two different sets of work that we're talking about in this permit application. the first set is improvements for the residents -- amenity improvements, opening spaces up to allow light in, creating spaces for community spaces, mahjong, and karaoke. the second is creating administrator's and deputy

administrator's unit. the deputy administrator's unit was completed sometime back, and the administrator's unit was in progress. miss wong has explained why those units are necessary. we're in agreement to scale back the administrator unit, remove one of the units and partition that back off if that helps. and i'll turn it over to sarah for a moment. >> okay. very briefly, sarah hoffman, pleasure to be addressing you. i'm talking about section 102 of the planning code and why these administrator units are more aptly treated as an accessory use than an administrator use. it allows them to comply with state law, and the planning code allows for this use. happy to answer questions on that. >> thank you. >> i had a question. >> go ahead. >> no, please. >> mine's, at this point, a

procedural question. didn't this -- does this have to go through occi first before it went to planning? >> there is related litigation ongoing which, i think, is separate from this permit application. >> no. when the redevelopment agency dissolved, their land use functions, which used to be handled in house, went to planning. their appeal functions, which used to be in house, came here. was there a step that had to go through occi first before it went for -- by the way, i was at planning when this was -- this project was a referral from redevelopment from the vanness plan. >> i'm not aware of any intermediate steps there. i'm happy to look into it.

>> curious. that's all. we had a former redevelopment commissioner here. >> yeah, but this wasn't on our -- we never had this surface in the five or -- service in the five or six or seven years that i was there. we were all focused on hunters point. fundamentally, this building was -- the agreement on this building was that it would be developed for a certain amount of housing units. fundamentally, the owner -- this was my argument with myself -- the owner chose to abuse the agreement to build this building and reduce the amount of housing units, especially in the case, kp exacerbated by the fact that they're specialty housing, that they serve seniors, that they serve people with health issues. so why should -- why -- why do

you dare come here to -- to talk about something that somebody did illegally that abused their rights that -- the right that was given to them by the city to build this in the first place? so they went -- they -- without permission -- let me get this straight without my question. without permission -- would you clarify this. the -- your client went and started construction to reduce the amount of housing -- i'm going to focus on the housing -- for very high-risk individuals without permission and in complete breach of the -- of the d.d.a., is that correct? >> much of that is correct, and we're not here to excuse what was done. >> so why should, especially the housing piece, geary is --

i'm a little bit mellower on it, but the housing piece, why should myself, looking at this, show any compassion whatsoever for your client when they arbitrarily and against an agreement with the city that allowed them to build this thing in the first place, why should we not make you put this back together again and put the original amount of housing back in, especially in this housing environment and especially with this constituency? tell me, what's your motive there, sir? >> well, i mean, the motive is i come into this very recently to try to fix the situation. i think it's important to understand that more units were built at the property than the development agreement required. there's actually quite a spread between what was required and what was built. many of those units were

vacant, unfilled. in fact i think there's been 50% vacancy the entire life -- >> excuse me, but wouldn't that fall as a business inadequacy, that the developer, through their inability to manage their business successfully, were -- was unable to fill those units? i -- that -- that argument went right out the door with me, but that's -- continue. i'm sorry. >> sure. well, i think that's a legitimate concern, but the answer is this was not taking housing away from any residents. in fact, they've been unable to fill those units, so they took a small number of the units and converted th converted them to residential amenity space for the residents who were there to try to make it more attract tiive for residents to come in. the nine units on the top floor which were converted to the administrator unit and the deputy administrator unit, so

they could live on-site, which is now required by state law. they should have gotten permits ahead of time, but we're doing what we can at this point to get permits for that. and i think that work actually is legitimate. obviously, they need to go through the right process to do it. >> is it your -- it is your interpretation that the state law is that the administrators should be required to live there on a -- on a permanent basis where i could look at the -- and i -- i'm not an expert in this area, but i looked at the same piece of paper, and apply it to my own hospitality businesses where quite often, the administrator, otherwise known as the general manager, where there is a unit for a general manager or a manager on duty to reside for the purposes of providing

reasonable protection for the guests in -- in that hospitality unit. and by the way, you have a hospitality unit here. it's the same thing, it's just different kind of customers. so i -- why is your interpretation that it should be permanently occupied by, as the law is, permanently occupied by the administrator as opposed to being occupied by a manager on duty to ensure that there's 24-hour coverage at the hotel -- sorry, at the -- at the building by a manager? >> right. well, i think there's a lot of similarity there. we're talking about an accessory use, residential use that's accessory to the institutional use in this case. my understanding is it's a technical term that requires an administrator to be there 24

hours a day. >> so that would be your interpretation? >> yes, sir. >> thanks. >> thank you. we'll now hear from the planning department. >> thank you. scott sanchez, planning department. subject property at 1033 vanness off is located in the r.c. 4 zoning district and 130 v. height limit height and bulk district. it's located within the vanness special use district and was previously located within western addition a-2 project area and was previously land that was owned by the city back in the late 90's, the city entered into a competitive process to seek redevelopment of the site. the appellant won that process and entered into a contract with the city to buy that property, which was about 12,353 square feet for about $2

million. this was back in 2000 with the purpose of developing the property with 20 beds of initially convalescent care later changed to dementia care on the second floor, and 112 rooms to service 112 occupants on floors three through nine. the project was subsequently completed in 2004. as part of the -- one of the requirements of the contract was initially that 20 of those units be affordable units. the -- initially, when the project went on-line, it's my understanding that they tried to rent the units for more than what the below market rate was allowed. they discussed this with redevelopment agency staff, who said that you need today go back to the redevelopment

agency commission to seek another change, and there have been multiple changes to the contract over the years to increase the amount which they could charge rent. they did so in 2006, and from the minutes of that redevelopment hearing, interesting the vice president of the commission at the time is now our mayor breed, and she did note during the course of the public hearing that her mom had been a patient there, had stayed there. she was wondering if they had ever offered the units as affordable units because there was never any mention of that when she had visited the establishment. and to our record to date, we have no evidence that any of the units and now 25 of those units are to be affordable units. we have no evidence that any unit has ever been properly advertised or rented in compliance with the b.m.r. requirements that are contractual obligation on the part of the appellant to meet. over the years, we know there were changes with the

redevelopment agency disappearing in 2012. the authority, as president fung noted, did get distribute. the land use review went to the planning department. the affordable housing requirement went to mayor's office of housing and community development, and ocii was created to deal with the d.d.a. -- development agreements and implement those contracts as the years continued. in 2015, the mayor's office notified the property owner, the appellant, of their requirement, reminding them of their requirement to rent these units, has never been successful in getting that requirement satisfied. after multiple notices, the appellant did reach out to the planning department, and i discussed this with melody, one of the appellants, about the idea of converting the building

to student housing. they said that it was not really well utilized as residential care facility. at the time of the 2006 hearing at redevelopment agency, they said it was 40% occupied. they said that raising the amount they could charge for even the affordable units would allow them to fill those units very, very quickly. that was the testimony at the hearing, however, no such quick occupancy of those units resulted. even on our site visit this week, i asked about the occupancy and it's still about 40%, which i think is hard to understand. in 2016, there was a report stating that we need, a very high demand for residential care facilities. we need to facilitate the approval process for that. actually just this week, former member of this board, now a supervisor, rafael mandelman introduced legislation to make it easier to convert or easier

to provide residential care. and i also should note the property next to this, was approved in the last couple years for residential uses. they recently came back in for a permit to convert that to residential care facility entirely. so we think we can see there's a very clear demand. it's inexplicable in my mind why this is only 40%. the appellant never made mention of the d.d.a. in any of their contractual obligations. we did include in our letter of determination response that they need to contact mayor's office to work out that requirement, that they need to satisfy that obligation that they're faced. in 2017, there was a task force visit with the city attorney's

office, mayor's office, bept of dlg inspection, and they -- department of building inspection, and they found work that had been performed over the last decade, including the merging of the deputy manager's unit, which i understand is the son of one of the occupants. i will note on the site visit yesterday, i did see the office of that deputy director, and i did see their license that was displayed, the state license actually expired last year, so they're not -- as i understand, currently licensed by the state. i did speak with the appellant before the hearing, and they indicated that is a fairly easy process to get done, but it sounds like there's been no effort to get that done, but they may now and seek to do that. so last year, the planning -- after the site visit that had found these numerous violations, they submitted the prior building application to legalize. they could have converted back

to what was there, what was supposed to be there under the d.d.a. and under the previously approved building permits. they sought to legalize what is there now, and this was heard -- we did a staff initiated d.r. because we felt so strongly about the inappropriate alterations that had been made, and the planning commission heard and denied this permit a few months ago and now appealed to you, this board. [please stand by]

>> it would certain that certainly, they were not -- they did not exceed the number of units required by the d.d.a.? >> no, they are counting the rooms on the second level and adding that to on floors 3-9. there were supposed to be 112 by the information i was given from the appellant and there are 111. i think they have another 12 rooms on -- 12 or 13 rooms on

the second-storey but that is summed to be 20 beds asper the terms of the d.d.a., there are no extra rooms to play with. that is not the case. what they're proposing is not in compliance with the d.d.a. >> would you consider that in this environment where there's a shortage of housing in just about ever category, whether there's a special needs or just workforce housing or low income housing and even highrise that not having these extra beds, regardless of the administrative ability to fill those beds, that not having these beds as the d.d.a. required it is a significant hardship in the city of san francisco? >> i absolutely agree. the proposal would be non

compliant with our requirements of the d.d.a. just looking at what they proposed and the residential units they have proposed are not code compliant. the residential care facility is not a residential use under the planning code. it's an institutional use. under the planning code, there are certain instances where dwelling units can be added as accessory units, this is not one of them. it's very explicit where you can have dwelling units as an accessory use and it's not a use listed. we have to consider these as separate residential units. ray rear yard is required. the unit of the deputy director cannot comply it the exposure requirements and it has wonderful views and it's well done, it doesn't meet the code requirements for exposure nor do the units meet the open space

requirements, what they've done for the dwelling units in addition to the planning commission and pro pro at decision to say you can't merge any of the units, that would be in violation of the d.d.a., this this is a use in demand and it doesn't comply with the planning code. >> final question, the do have information with the requirement that administrator has to live on the property full time versus the must be a manager on duty who is living at the property at all times to take care of urgent and emergency needs? >> i've just reviewed the language. i think as the planning commission did, as others have and my reading of that is that it does not require someone to

make this their residents. it does not require a manager to make this their home. again, the timing of this i think this legislation came through in 2014. this illegal work came through in 2007. when they said, they were talking about in terms of the affordable units, we can't provide the affordable units because of the financial hardship. at the time, they took units off of the market and had the money to do illegal renovations to the building and to continue the illegal renovations because the site visit that occurred last year, one of those suites, the five rooms into one, that's in a state of construction. that's more recent activity. >> thank you. >> i'm going to clarify. commissioners using the terms beds you use the terms rooms. they were interchangeable. is the d.d.a. specify which one?

>> it specifies units and it also -- it should be for residential care containing 112 efficiency units, which will accommodate a total of 112 residents on the third to ninth floors. and a 20-bed licensed respite care unit on the second floor. >> so the second floor is 20 beds, it's not 20 rooms. >> that's correct. >> that could be co could be ale room? >> right. >> the third through the nine is 112 that is required says units, right. so one would assume those are individual rooms. >> yes. it does specify, it's 112 efficiency units which will accommodate 112 residents. so one to one occupancy.

even in the affordable requirements, it's more explicit stating they must be single occupancy. >> thank you. >> thank you, mr. duffy. >> commissioners, joe duffy d. b.i. i don't have too much to say. just could confirm there's a notice of violation for the work that was done without a permit. as you know, the permit good filed and subsequently denied. the case is currently been referred to code enforcement division for a hearing. that will be probably coming up soon on the directors hearing which could end up with an order of abatement for the building. i don't really have much to add. the notes of violation was in the brief. it's lengthy. i don't think you need me to read it out. thank you. >> thank you. is there any public comment on

this item? any public comment? how many people? if you can please get close. can you come down to the front and have a seat, thank you. >> director green. >> i'm doing well, thank you. for the record, chairman, commissioners, staff, my name is gerald green. i am here to support the appellant. as previously been exhibited by your problem-solving skills, my intent is to first of all try to at least contribute some means of a compromise, some means of a solution here. i'm speaking to commissioners swig issue about why we should be here. i believe that the redevelopment agency created a business deal and having the d.d.a. being

consistent with the d.d.a. is one way to demonstrate success but i also believe there are other ways that you can make this a successful project. i think the city did a business deal. i agree with commissioner fung that it probably was the case that that should be considered first and that business deal should be re-evaluated. we have a building permit that's before you. this building permit is being used as a means to solve a problem that is operational and physical. i believe there is a way to find some physical solution to this, to make this a more successful project. it is clear that there is something here that is unusual. the building is not completely occupied. it hasn't been occupied. and i think that there's better ways of being able to establish this will successful project. this permit and your ability to find some middle ground here. i think it's one way of helping in that matter. it's been separated that we have work that's done related to

trying to comply with someone's interpretation as well as trying to make this a better project and you should keep that in mind. you have the ability to at least try to find some physical solutions here and take this permit and be able to do that. maybe a way to do this is to continue this, allow them to go back and re-evaluate and try to redo this deal in some way or another. and then come back and try to find a better physical solution. i don't think requiring them to go back to the 2004 condition will result in a successful project. nor will it result in occupancy. thank you. >> good evening, commissioners. i just noticed this one calender, my mom fell about 12 years ago and broke her hip. she was 88 or 89. she was in a hospital for a week and screamed and yelled and said get me out of