given recommendations. i authored a resolution to create an oversight committee because we were not seeing action, any movement on the equity applicants. and also to have experts at the table to actually advise the board of supervisors. so i just want you to know, thank you for coming out today. we hear you. and we are, i think, going to have a hearing on the results of what the controller actually recommends and what the board can do to help. having said that, there is no b.l.a. report. i would like to move to the board with positive recommendation. take that without objection. please call item 9. >> item 9, establishing the proposal united nations limit of $5.5 billion for the school year 2019-20.

>> supervisor fewer: thank you. we have michael mitten from the controller's office. this is something i believe we approve on annual basis? . >> good morning. i will talk briefly about this year's appropriation limit, called the gam limit. it was started in the 1970s and is generally a rule to limit appropriations from taxes. it's a rule to limit taxes. each year we're allowed to

increase the limit by two factors, a population factor fort growth in san francisco. this year, it's 0.33%. our file goes back to 1999 and that is the lowest population increase in the last 20 years. the other factor is the cost of living factor. we could use -- we're allowed to use the greater of california personal income growth or the assessment growth due to newcomer shall construction. this year, two we've had are in the final year. the soda tax and the transfer tax. but we'll still have the cannabis tax and the t.n.c. tax which is now just beginning in the coming years. beginning in 2021, the voter override will be $55 million. as you know, we have three tax

measures that are currently in litigation. those revenues are not being recognized at this time. and they are not applied to the gam limit at this time. when they were recognized, the -- when they are recognized, they'll be applied in the fiscal year. the window starts when the measures are approved. so if it's after the four-year window, it will be counting toward the gam limit. the voter improved increase, we're up to 19-20 limit of $5.5 billion. there are several things we can exclude. this is voter approved debt, qualified mandate, after removing those, our tax proceeds are $4 billion. and that leaves us $1.5 billion below the limit this year. that's it.

>> this is the annual approval by the board of supervisors. if you look at table one, page 13 of our report, the taxable income that is subject to the appropriations limit is $4.1 billion. table 2 on page 14, shows the adjustments and the calculation of the appropriation limit of $5.5 billion and then following that, table 3 on page 15, that shows there is two different formulas that can be used and the impact on the appropriations limit of the each of the formula that is used, as you can see the $5.5 billion, the formula has been used by the controller's office and we recommend a >> supervisor fewer: thank you very much. any members like to comment?

public comment is closed. like to make motion to put this to the board with a positive recommendation. any other business before us today? >> clerk: no other business. >> supervisor fewer: we are adjourned. thanks.

good evening. welcome to the january 29, 2020 meet offing the san francisco board of appeals. president rick swig is the presiding officer, joined by vice president ann lazarus, commissioner honda, tanner and santacana. to my left is the deputy city attorney that will provide the board with needed legal advice. at the controls is the process clerk and the board's intern. i'm julie rosenberg, the board's executive director. we'll be joined by representatives from the city departments that have cases before the board this evening. up front, we have scott sanchez, acting zoning administrator, representing the planning department and commission and joseph duffy representing the department of building inspections. the board meeting guidelines are as follows. the board requests that you silence all phones so they will not disturb the proceedings. please carry on conversations in

the hallway. appellants, permit holders. members of the public who are not affiliated with the parties have up to three minutes each to address the board. please speak into the mic. to assist in the preparation of minutes, you're asking, but not required to give a speaker card. they're available on the left side of the podium. please note that the board reserves the right to not all an item after 10:00 p.m. if you have questions about rehearing, the board rules or schedules, please visit the board after the meeting, or call or visit the office. this meeting is broadcast live on sfgovtv and will be rebroadcast fridays 4:00 p.m. on channel 26.

the video is on the website and can be down loaded. now, we will swear in or affirm all those who intend to testify. any member of the public may speak without taking an oath. if you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, please stand, say i do after you have been sworn in or affirmed. if you intend to testify, please stand. do you swear that the testimony you are about to give is the truth? thank you. please be seated. okay, commissioners, we have two housekeeping items. the first one is item number 6, appeal number 19-125. 217 hugo street. appellant has withdrawn the appeal. item number 7, this is appeal number 19-145, subject property of 949 and 950 fillmore street.

the parties have requested a continuance until april 8, 2020. and because it's on the published calendar, we do need a vote to move it. >> anybody want to move for the continuance? >> so moved. >> we have a motion from commissioner honda to continue this item to april 8. is there any public comment on this motion? okay, seeing none, on that motion, commissioner santacana aye, honda aye. tanner aye. lazarus aye, swig aye. that motion carries and that is moved to april 8. item 1, which is general public comment. this is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction but not on tonight's calendar. anyone here for general public comment? okay, we'll move on to item number 2. election of officers. article 1, section 1 of the

board rules requires the annual election of officers this time of year. thank you, president swig and vice president lazarus for your service this past year. we will start, first, with the office of the president. are there any members of the board who would like to nominated a colleague or themselves? >> i would like to nominate ann lazarus to president, please. >> took the words out of my mouth. >> we have a nomination from president swig to elect vice president -- to elevate vice president lazarus to the position of president. are you willing to serve in this capacity? >> vice president lazarus: yes, i am. >> any public comment on the motion? seeing none, we'll move on to the vote. so commissioner santacana aye. lazarus aye. honda aye. tanner aye. okay, so that motion carries and

congratulations. so we now have a new president. we will now move on to the office of vice president. commissioners, would any members of the board like to nominate someone for this office? >> i'd like to nominate darryl honda, please as vice president. >> we're going to have a coup the first night. >> commissioner honda, are you willing to serve as vice president? >> yes. >> is there any public comment on this motion to elect commissioner honda to vice president slot? seeing none, on that motion, commission santacana aye. lazarus aye. honda aye. tanner aye. so that motion carries. congratulations. thank you. okay, so we will now move on to item number 3, commissioner comments and questions.

i did want to raise that a member of the public made a request for a future item regarding collaboration between the building of department inspection and urban forestry regarding the protection of landmark trees. the member of the public would like to have an item in the future on this. did you have think thoughts? >> i think if there is a policy which is being developed between dbi and bureau of urban forestry, that -- and there is going to be a formal policy that i would like to suggest that we schedule that -- that we schedule a briefing on the development of that policy if it emerges, or if it's there. so that the board and the public can be kept up to speed and educated as to the clarification of any policy that exists between the two bodies.

so we don't have any questions being raised accordingly. >> okay. any other commissioners? okay. is there any public comment on this item? okay. so we will move on to item number 4. which is the adoption of the minutes. commissioners, before you for consideration and adoption are the january 15, 2020 minutes. >> commissioners? motion? >> submitted. so we have a motion from vice president honda to adopt the minutes as submitted. is there any public comment on the motion? okay, seeing none, on that motion, commissioner santacana aye. honda aye. tanner aye. swig aye. that motion carries and the minutes are adopted. we're now moving on to item number 5.

this is appeal number 19-144. john yee versus department of building inspection, subject property 49 drumm street appealing issuance on december 10, 2019 to smith ketchum trust, violation. new third level addition for expansion of mechanical space at front of building above parapet wall. this is permit 2018-80 and we'll hear from the appellant first. >> prior to the hearing i have to disclose i am a partner with the group on the project. their appearance before the body on this evening will have no effect on my decision. >> thank you, good evening commissioners. my name is ryan patrick, i represent appellant. stated simply, this per is for

the expansion of a mechanical room. what we have here is illegal construction of an office on the top of the building. this is what they're calling office -- or not office, but a mechanical room. you've got a door right here. you enter. you go up some stairs. you go into the office. i mean, there is a lot of machinery in this one. we ask that initially that this hearing be continued so we could have our engineers and have this looked at, but the other side refused that. they wanted to go forward and our chief concern is that the law is not being followed here. there is a lot of regulations

that need to be followed and this permit is not what it says it is on this basis we're going to request that you revoke the permit. >> what was your name again? >> ryan patrick. >> did you file a brief, sir? >> we were not able to. we asked for continuance just to get the plans, our engineers involved and the other side was not amenable to that. we eventually got plans, but that was yesterday afternoon. so we have not had any opportunity to get information on this or go up and inspect, other than to take these photos. >> okay, but you filed a notice of appeal and briefing schedule is set, right? >> that's correct. >> january 9? >> we requested a continuance i think prior to that. >> i seem to remember this is not the first time you've failed to file a brief before an appeal body. >> when this comes into our office, i'm doing the best i can

here. we wanted a continuance. we timely requested a continuance and that was objected to and denied. the continuance that we asked for in the case was to specifically allow our engineers to come in, look at the plans so we could solve the problem. >> when were you retained for the case? >> i'd have to ask -- i think it was around january -- early january. i don't know off the top of my head when the retainer. i didn't handle that part of the case. >> so mr. patrick did send an e-mail on january 10 asking for reschedule the matter. that was forwarded to the permit-holder and i explained the process, and apparently they never worked it out. and then late -- recently mr. patrick contacted me again and i advised him since it's on the published calendar, if you wanted continuance you'd have to ask the board. but i didn't know you wanted

continuance until after you presented your case. >> you've been here before. i would highly recommend, if you're going to practice in front of this commission, you learn our rules. our rules are very, very clear. they're published and i'm very sympathetic to the fact that you wanted a continuance and if you had followed the rules of the board and paid attention to how we do business, then you probably would have got your continuance. but you didn't pay attention. and i'm very sorry about that, but i also -- i've seen you before here. and you know, you're not a rookie. and i would -- i think we had conversations in the past about your knowledge and practice in front of this board. so you know, we may find that there will be a continuance today or not, but i pray upon you that you get familiar with

your -- how to practice in front of this board of appeals, okay? so i'm sympathetic, but not apologetic. >> with all due respect, mr. swig, i hear where you're coming from and i diligently asked for a continuance prior to the brief being filed. i followed up diligently to see if that continuance was processed and found out it was not granted -- or whatever process you put on calendar. >> let me tell you something, okay? because as president, now outgoing, here's what goes on. if somebody practices -- and this is for the public record -- if somebody asks for an item to be postponed, it is offered in front of the executive director. the executive director comes to the president and asks the president -- that would be me in this case -- if something can be

postponed. unless there is really incredible negligence or a really bad excuse, most of the time i will say to the executive director, that sounds fair. but in this case, it is clear that you didn't understand -- once again you didn't understand the rules or didn't seek to find the rules. so you know, in the future, those are the rules. you know, you want a postponement before something is made public on the public record and scheduled, you go to the executive director, the executive director goes to the president. it's not between you and the other side. >> initially we do a clear denial from the other side, which we did not have. their brief was due. the appellant's brief was due january 9. on january 10 i received e-mail saying they wanted to reschedule the matter. i said, here's the process, go ask the other side. but i'm not going to check in

every day if he got permission. when i did hear from him, it was too late to go to you to delay the matter. >> president swig: i'm advising council, if you want to continue to practice, you'll get satisfaction. we're really nice about giving people satisfaction, because we're here to serve, but you got to pay attention to how business is done in front of this commission if you're going to practice. just advisory. not admonishment. >> mr. patrick, you do have five minutes and 39 seconds if you want to say anything further to the board regarding your case? >> they're calling this an existing -- they're trying to expand a mechanical room. this is clearly not a mechanical room. the permit should be revoked and they should have to get a proper permit. it's simple. >> is your client here? >> yes, my client is here and we

have a architect. >> commissioner honda: i have a question for your client. >> okay. >> welcome. hello. i just wanted to ask you directly before we consider any sort of continuance, you know, i'm loathe to punish clients for their attorney's failures, so i'd like you to explain in your own words why you filed this appeal. >> all right, i was out of town for quite some time. when i returned, i had a letter on my desk and came to permit was issued for retrofit of the upstairs, the rooftop. i only have two days to appeal. if i don't appeal, then i don't

have any opportunity to appeal after that. i own several buildings on this block. i have two buildings the subject building and one behind it. i'm familiar with the existing structure at 49 drumm street, because i think i dealt with his father 30 years ago and they have illegal structure in the back already. i have no problem with that. the only concern i have is the added weight that they increase approximately 50, 60% of the rooftop without the proper permits. and now they're trying to retro it as a mechanical room. and if that is the case, fine. but if there is activity in the future, that rooftop with the added weight will be rocking to the back and to the left. and both of the area is hitting my building. that would be negative impact. i asked him, can you allot me time where i can hire structural

engineer to review the addition of the structure? no. i just came back two days. i have an opportunity to file the appeal. and i believe i spoke to that gentleman right there. and i said, if i don't appeal now, i won't be able to appeal and it's a mechanical room. long story short, i'm trying to locate structural engineer. you can see at the embarcadero center, joins these buildings right behind it. if you look at the structure, it is categorized as a break. and when his father upgraded the building to seismic compliance, he did the minimal seismic retrofit. if you were to add addition to the rooftop, there is a lot of structural calculation to modify

or reinforce before you allow that. when i spoke with eric ketchum, he told me there was no seismic or no structural retrofit to be done on the building. that shocked me. >> commissioner honda: i think i understand the nature of your appeal. >> i don't have a problem with the addition of the rooftop itself, just the structural integrity. >> i understand. >> thank you for your time. >> thank you. >> would you like to hear from an architect or anything like that? thank you. >> thank you. so we will now hear from the permit-holder. >> good evening, commissioners, jody knight on behalf of the permit-holder. i understand that the issue here is concerns about the structural issues. we've reached out, offered to have the structural engineers meet, talk and send out the plans. this is an issued permit, so it's been a long time -- i think

it was under review for over a year, so it's been fully reviewed by dbi. so in terms of structural issues, we're confident it's gotten a thorough review. obviously, we're happy to have any conversations or make any assurances with the neighbors about that. in terms about the time, to respond to 2017nov, we're anxious to have the permit issued and do the work and comply with the n.o.v., at the same time we're having the discussion with the neighbors to make them feel comfortable about the seismic issues. we would ask to have the permit be finally issued and do that work and respond to the n.o.v. >> other than the outreach, for requesting -- are you done? >> yeah, i'm done. happy to take questions. >> other than the outreach to

request a postponement, have you otherwise heard from the appellant prior to the 11th hour? >> i mean, we got the request for the continuance and we explained, we also -- there is a ground floor tenant who is going in, so there is the although lot of moving -- lot of moving pieces, so we're anxious -- >> but prior to the continuance, was there dialogue between your client, yourself and the appellant? >> i'll let my client eric ketchum respond to that. i think he can respond. i'm new to the project. >> i apologize. we didn't get a brief or anything, or neither did the architect or the engineer. there is no appeal. they aren't here. too bad because they could have answered some of these points. but -- my dad died in 2017.

we got a notice of violation in 2017. it was about a year and a half of going through with like the plan checker for three or four hours, with santos, they went through the whole process over 18 months. because this was basically a 2017 violation. and you know, i talked to john yee once or twice. i never heard -- i never heard any concerns during ta two years. i even asked him once. i talked to him within a day or two of getting this notice of appeal and asked, what are your concerns? and yeah, he expressed the structural. i explained the process and gave the name of the engineer. but he said -- i guess they said they haven't hired the structural engineer. so there hasn't been attempt on their part to have this discussion with the structural engineer.

so it's sort of like two years, how long are you going to drag this out for and are you going to assume -- >> that's the answer i want. >> let me follow up on that. did he specifically ask you for any structural calculations for the additional load on top of your building? >> no. >> he did not? >> he just expressed a general concern. >> and how long has this illegal structure been on your building? >> 2017. >> no, that's the notice of violation, how long has the upgrade been prior to that? >> that's about when it was put up there. >> okay. thank you. >> thank you. okay, we will now hear from the planning department. >> looks like you're bringing pictures, too, huh? show-and-tell. good evening. congratulations on your

elevations this evening. so i hadn't intended to speak on this, had no idea what the issues may be, but to give photos to help. could i have the overhead. thinks the building from -- this is the building from 2017. and so i think -- >> can you make it a little lighter? it's a bit dark. >> it's a reflection. can you move the light. >> maybe i can try. >> here, you can see the subject property looks like there is a third floor that is set up of back substantially. i don't know what the use of that was, but it was subsequently expanded. it seems it was in 2017 to the front of the property. and it's hard to -- the area

didn't have the same angle given the buildings nearby, it's hard to see, but this is the street view photo. you can see it's extending to close to the front property line. so clearly new construction. we have a planning enforcement case on the property and the permit that is going sought here is to correct the violation. and if i can read from the planner's approval language in the document, states plan or approved noting the building permit list third floor addition for mechanical equipment and storage space. approved, but expansion must be five feet from the front facade. for mechanical storage only. i don't have the plans before me because i wasn't provided by the parties prior to the hearing,

but can only guess it reflects that the space will be for mechanical storage, will not be habitable are occupible. this is a office district. there is 300-foot height limit. so there is room to work with on terms of a third-floor addition here, but, yeah, i was blindsided by the appellant's approach to the hearing, but i don't know how they got in to take photos either or where the photos are from. but this seems that the permit before you will actually correct the issues that they've raised. >> i have a question. if those photos were in fact photos of an office space in the third floor, would that be allowed, or would it have to go through a permitting process >> they would need a permit to legalize the office. there would be a path forward to

do it, but not with the permit they have now. >> is it for the entire third floor or the addition that is more toward the front? >> the scope of the violation was the expansion of the third floor and that's what the scope of work is. >> so is it possible that the other portion of the third floor could have been legal already and that sign, and now this is for the mechanical area that the we don't have plans. >> it's possible, but we don't have any information. >> great, thank you. >> so, just -- i don't know where we're going to go with this, because nobody has enough information. nobody has any detail, but on the conjectural standpoint, if indeed that area is now occupied by an office, and, therefore, it would be not legal to even subsequent to the n.o.v. being cured, then what happens?

another notice of violation is filed? and with the recommendation to cure and which would be get rid of the office, and put in mechanical or keep it vacant? is that where we're going? >> from what i gather from the information that has been presented is that this -- in 2017, this top floor was expanded. it was illegally additional office space. the permit they have now will set back that wall and make it so that it is not office space in that expanded area. so it seems to correct the issue that the appellant has raised concerns about it being an office. >> president swig: thank you. >> thank you. we'll hear from the department of building inspection. >> good evening. joe duffy, dbi. congratulations on the new appointments for a start. and on the building permit here, there is a lot of moving parts.

not so much information it looks like. obviously no plans, no brief. it's been said, it helps us a lot, every one of us in preparation, but the permit itself is to comply with the dbi n.o.v. new third level horizontal addition for expansion of mechanical space at front of building above existing concrete parapet wall, height above parapet wall approximately four feet ten inches. the permit was as you heard reviewed -- it was taken, it's a form 3 application, filed on the 14th of august, 2018. and it went through our code enforcement, planning, building, structural and architectural review, mechanical plan check. d.p.w. and then puc and then finally issued on the 10th of

december, 2019. and then suspended on the 23rd of december. some of the issues that were brought up by the appellant seem to be concerning the structural design. and was everything okay. well, from -- i think we've had a couple of these before recently. one where a neighbor was concerned about the height of a building. the drawings submitted to dbi, i haven't seen them, but i would imagine from the design professional, should have and would have taken into account the existing link on the load that was added to the roof in the design. and any work needed to be done would have been done. i've seen occasions where you have to do a lot. i've seen occasions where you have to do little and sometimes none actually. but the plans would have went

through structural review within dbi, matthew rawls is an engineer. and in reply to one of the comments of the owner, or the lawyer, they could have come down to dbi and reviewed the plans of the fourth floor. and if they brought an engineer with them and they saw anything, they could draw the attention of that, file a complaint to say, hold on a minute, there is something wrong with the drawings here. you let a permit with bad structural details. we'll take a look at that with our structural staff and see if there is anything wrong. that occasionally happens and we do look into it. that's an option for them. so that's basically -- i wanted to read the notice of violation just to give you an idea of that was for.

so the complaint was filed with dbi on the 1st of november, 2017. and on the 2nd of november, we issued a notice of violation. and the notice of violation read, complaint has been filed with this department regarding a structure built on top of the roof. a site inspection revealed third storey addition. this exceeds the scope of the permit. no access was provided. work was visible from the street. approximate size of addition is 1600 square feet. permit with plans and planning department approval, provide full scope of work at time of filing, separate plumbing and electrical permits are required. and it was assessed a penalty. so it looks like the building

inspector did view it from the street and had limited access, but did want to get it on notice. and in addition to the appellant and the lawyer's concerns, they could file a new complaint -- if the permit was upheld and the appeal rejected. the dbi could take a complaint on it to make sure what they have up there is what is in the plans, including the use and size and what they're going to do. they're required to get inspections to get a signoff on the electrical and plumbing work. if there was work, there is going to have to be opened up. so there is work ahead of them to get this to make sure that the plans are complied with. if it's supposed to be a mechanical space, we're definitely not signing off on the office. i don't know -- i think from what i'm seeing and mr. sanchez, i think it was existing on that

top floor and got expanded. and that's what we're looking at. i'm not sure what the photos were of the office use, but i'm available for questions. >> right, wrong or indifferent, if we deny the appeal, and your group goes up there, they're going to straighten it out anyway, right? >> we hope so. that would be our job. >> that is their job. so it's already built. correct? >> yes. the damage is already done. if we were to deny the appeal -- i'm not saying we will, but to make everybody feel comfortable, that means your group still has to go up there, still has to do the inspections, still has to make assessment of what is legal and illegal. and if it's illegal you're going to take punitive action? right? >> that's correct, yes. they do actually have -- i'm looking for the enforcement on

the notice of violation. it's gone through -- it's gone through quite -- order of abatement on it. it's under order abatement, so they're motivated to get this taken care of in a right way. it's a pity we didn't see the drawings. that's the only thing that could have helped us. it looks like it has to be mechanical space, certainly for the new part. there is a restaurant on the ground floor they're doing work on. it makes sense if they're doing mechanical room on the roof, that is probably serving part of that space. unfortunately, they seem to have got ahead of themselves and done it without the proper permit and now this permit is catching up with it. >> if you guys go up there and find office space in area that

is supposed to be occupied by mechanical, will they file notice of violation, force the removal of the office equipment and abandonment of the space unless it's used for mechanical? >> yes. yes. >> thank you. is there any public comment on this item? >> welcome. >> good evening. i'm an attorney in san francisco. i represent oasis grill, it's the tenant on the first and basement floors of 49 drumm street. i'm a little bit surprised to hear what i just heard from the dbi. i just learned about this on january 15th. we submitted a letter to the

board regarding our concerns about the issuance of a permit. the permit wasn't issued until december 23, 2019, so we're not dragging this on. we're trying to get to the bottom of what is going on. and when we -- the reason why i'm concerned is because we're confused at how a permit could have been issued on a violation without any inspection of the building. if anybody had inspected the building, they would have known there is office use, there is a tenant in the office on the third floor and that was never there when my client leased the building in 2015. my client has spent four years building out the bottom floor. has not been able to open. wants to open. has spent a lot of money trying to open that space. but is now very concerned because in the interim period, the landlord has built out the top floor of the building and

has a structurele engineer that is telling my client that is causing a vertical load that the building cannot sustain. and so we have -- once i heard about the appeal and then the permit being issued, i immediately tried to get information from both the appellant, from the permit-holder, and from the city. yesterday, i was provided, as the appellant was, with the structural plans which show no consideration for the remaining vertical load. i brought a copy here today. and i can pull it up. but according to our structural engineer who has looked at it for a few minutes since he got it yesterday, it doesn't address the verted vertical load of an

addition. and in fact, the structural engineer -- [bell ringing] -- will be able to inform you that he spoke to mr. ketchum during the construction of this third floor. and identified these problems that -- the addition of the third floor was causing and mr. ketchum decided not to do anything about it. decided not to do any seismic upgrades, not to address any structural concerns that the structural engineer has. i said in the letter -- [bell ringing] >> thank you very much. >> is there any other public comment? >> we're on public comment, thank you.

>> this got way more interesting than i thought it would be. i remember you. welcome back. now you know how hard it is to open a restaurant and here i am again with the same restaurant. honorable members of the board, i don't know where to begin, but the first time i received this notice, this is -- this is the first time we received a notice. in the four years we've been trying to get our restaurant open, we had no idea that this was going on. i'm not located at that location. i'm on market street. but we had to do major work to get -- we've been doing the permit and pg&e for four years now. we finally finished everything last may when we went to submit everything. we found out there are violations. the landlord had kept those violations from us.

did not tell us that he put up office space up there. and not only that, that used to be just mechanical, because we had it all built out before. and we have all the permits and like i said, we had to close drumm street to get electrical. we got permits for that as well. that entire floor -- it was not the entire, but we had the mechanical up there and we had plans. he removed all of our mechanical and put it somewhere else, without our knowledge, without proper assessment. not only that, when i started investigating -- once i got this, i started to go, what is going on, why aren't we getting our permits? what is going on? i went to all of my contractors and they said the landlord had opened up all of our walls, gone into our electrical after they were approved and signed off. they did stuff upstairs. they get into our plumbing. all of that was reopened. all of that was extra cost for

me. so i have been very concerned. we started getting bills for oasis grill. in order to get your meter and energized for anything, you need to have a green tag. oasis grill had a green tag. he took that and put it on his, so he could get it energized. when the tenant who did all the work for the building wasn't allowed to open. i had to get everything inspected. all of my walls. i didn't close any walls until they were inspected. why do landlords get to do whatever they want? in fact, i'm into this $1.5 million and i still can't open. we have lost a lot of money on this space. >> ma'am, can you fill out a speaker card, please. thank you. is there any other public comment? okay, seeing none, we'll move on -- yes, we do? public comment?

>> is there anyone else that is going to speak to this matter besides the gentleman coming up? any other public comment? if there is, could you line up on the side of the wall here, please. >> hi. thank you. my name is -- i'm a civil engineer who did some -- i did the do inspect the building a few times and i did some seismic upgrading that is needed for the building. and in lieu of that, i -- the way i saw the plans, the structural plans briefly. there is no address of any seismic upgrading to that building. the submitted plans do not address any issues to seismic or lateral forces. just looking at them. so i think it's wise to have

structural engineer look at these plans and check the validity of the issuance of this permit. i think this -- the way i see it, the way i saw the building, basic structural in the basement especially, okay, i think these things should be addressed and thoroughly. so i think it needs to be addressed in that manner. i do believe the building as it stands now, with the work that is permitted, will not be safe. thank you. >> thank you. >> anyone else from the public. okay, we'll now move on to rebuttal. we'll hear from mr. patrick. you have three minutes. >> i think after hearing the public comment, seeing the photos that you guys get a clear

picture of what is going on here and the concerns. i don't have much other than to say, either continue this out, or revoke the permit, so we can get a proper permit in place and proper review. it obviously is not what the permit applicant purports it to be. i mean, he had to cure a notice of violation. purportedly lied to the city to say he was going to do that. and now we're here. it shouldn't -- you guys shouldn't let this happen. >> thank you. we'll now hear from the permit-holder. >> it would have been good if they filed a brief and informed us of these concerns. their structural engineer two years ago reviewed this and proposed $350,000 upgrade for the building for seismic retrofitting, but that's a voluntary upgrade.

so i would say he's a little bit of a self-interested party here, but in the two years, he didn't do actual analysis of this. as i said, this is all done in 2017. so it's just kind of odd that everything is coming up now. mr. zuv signed a lease two years ago to lease the second floor as office, so i don't know how he can argue that he had no idea what was going on up there. and then he actually reneged and cancelled the office lease because he said it was too expensive for him. i guess he has resentment about that. the city did go through and the electrical inspector, two or three went through in 2018, 2019 and signed off on the oasis permits on the upgrade of the electrical supply. so i'm not sure what the assertion is on the power supply. that is completely separate permit from 2015 that they applied for basically to create

one power supply for the upstairs office. there has always been an office. there is an office on the second floor. the whole building was medical office and the first floor was converted to restaurant. the second and upstairs were left as office. the third floor, i'm sorry that we didn't -- >> overhead, please. >> can you magnify it, please? we can zoom in. >> it wasn't approved as non-habitable space. it was approved as storage for future telecom switching equipment. those are the plans and i would have brought a lot more here if i realized all these other things were going to be brought up. but also as said, it wasn't approved as is. so this fire escape has to be upgraded. there is building inspection of definitely has things they have

to inspect with all of this as they originally said, but this whole assertion of there is no office up there. i mean, there has been an office there for 50 years. it was my dad's medical office from 1973, his overseas medical. so i don't know. it wasn't approved as non-habitable space, it was approved for telecom switching place. the upstairs. but the rest of it is office, it's approved as office. i don't know where they're saying it wasn't office or there was fraud on that. the building inspector, the electrical and plumbing inspector were all there in 2019 and they signed off on all the electrical. >> i have a question, sir. i'm sure everyone does. it's probably the same question. so who built this illegal structure? >> it was basically done as my dad died. >> so your dying dad built the

structure? i'm not trying to be rude or disrespectful? >> it's basically there and i'm sort of finishing it. >> so -- can i interrupt, can you identify when this structure was built? >> 2017. >> 2017? >> you can see the photos on doing maps exactly when it was done. >> so i mean, one, not blaming anyone, but as we've said several times, we have nothing to go by, we have no paper, we have a couple of pictures from the planning commission and then your iphone. there has been assertion made that you removed and changed electrical from electrical work that had been permitted prior, is that correct? >> no, that's a false assertias. that's going come back to the board. i'm asking you right now, is the plans that they're going to show

that indicates where their mechanical room, is that still where that mechanical room is located today? >> yes, there is an elevator shaft they use to run up to the third floor. if you're talking about pg&e in downtown -- >> this is very simple question. they had work that was permitted legally done. they have drawings that indicate the work that was done. the person indicated that somebody, not you, maybe your workers, had moved all their mechanical to somewhere else. so what is going to happen, we're going to look at those plans, we're going to have a site visit to your property, i'm asking you, was that mechanical room they installed legally relocated by your people? >> no. sorry, the mechanical room, or the electrical and gas for pg&e? >> okay. i'm just asking this now, because it's going to come up later. >> no, i'm sure.

>> thank you. anyone else? >> thank you. sir, can you come back. i'm just trying to make sure. you want to speak or you want your attorney to speak. i don't know who wants to speak for the permit-holder. i'm trying to understand, more and more keeps coming out of this case. so he said that there has always been office up there. there had been restaurant on the ground floor. there is office on the second floor. and there was existing prior to 2017 office on the third floor. is that what is being stated? yes, no? >> the actual questions about the space should go to eric. >> it was labelled as a storage space on the third floor. >> that third floor was further expanded after 2017? >> in 2017. nothing happened. this is all from 2017. >> what i'm trying to understand, what i was trying to initially understand, the appellant saying there is office up here. maybe the office is up there and

it's fine. and then there is expanded building under this n.o.v., that is the violation that is built without permits and improperly constructed. so i'm trying to get a picture, because as the commissioner said, if this comes back, we have to understand what you're asserting and what is there. i would say it's very troubling to hear the assertions from your tenant considering that they've been leasing from you or your father for four years and to have to come to this body is pretty troubling. and i hope that you can work with them to figure out what is going on. because we do want to see that the work they have paid for, permitted, signed off, is still intact and not disrupted. will we find any such action has been taken? >> no. there is a restaurant on the

basement in the first floor. >> we understand that. we're just trying to clear, because you're under oath and this is probably going to come back to us. we're going to have their approved plans. we're asking you right now, very clearly, and there is no allegations, but we're asking, did you remove the permitted work before and relocate this for your illegal structure that was up there? >> no. >> that is very simple. >> and is there currently an office tenant in the illegal constructed part you're trying to rectify in the third floor extension? is there tenant? >> there is an office in the second, back part of the third floor. >> and it's being leased and occupied currently? >> it's been for years, yeah. >> and the part you constructed, the illegal part you're trying to rectify, is there office tenant in that portion of the third floor? >> i mean it's contiguous, but

separate. it's supposed to be a storage space. >> can you step back up. you did that to yourself. you know, i'm hearing double talk, triple talk, quadruple talk, but maybe my bring is not functioning today. so i'm going to start all over again. in 2016, what was on the roof? >> well, the back part of the structure that the saw there. >> what was on the roof? was there a building on the roof? or was there no building on the roof? simple question. >> i believe -- it was 2015 when it started. >> no, 2014. what was on the roof? >> the roof, i guess there would have been dustings and things. >> nothing on the roof. >> right. so between 2014 and today, what

was put onto the roof? >> so he had a permit -- >> what was put onto the roof? answer the question. i'm not going to put up with double talk and digression, okay? >> there is 500 square foot addition to the building, and the back part of the roof had restaurant and air-conditioning for restaurant and various things put onto it. >> the 500 square foot addition to the roof. was there any permit whatsoever done related to that 500 square foot addition placed on the roof? >> that's what the n.o.v. is there for -- >> so the answer is no? >> right. >> so i'm april assuming when the 500 square foot addition was placed on the roof, since there was no authorization to do it from the city, that there were no engineering -- there was no engineering effort, formal engineering effort made to

certify that structure, that the existing building would hold that 500 square foot addition. >> i would have brought alex santos to discuss that, but he did calculate the load and did not have concerns about it. what he said, i asked him to write a defensive letter and they have to make concrete assertions. >> the time that the building was built, the 500-square foot addition was made, did you do any engineering studies that measured the impact of the load of 500 square feet and occupancy of that 500 square feet on the building? >> those calculations were done subsequent. >> within that 500 square foot building, there is electrical? >> well, there is electrical. there was electrical, yeah. lights and things. >> there is electrical. >> yeah. >> and there was no effort made in installing that electrical

which would be typical in putting in an office. there were no inspections made. that was all done in -- under cover of darkness metaphorically, so the city was not aware, nor were you permitted to put in the electrical, correct? >> i can't make any -- yeah, yeah, that was definitely improperly done and notice of violation. >> was there any plumbing in that addition? >> no. so the only improvements in the 500 square foot addition are cosmetic and electrical. >> right. >> along with the structural. >> there is a parapet wall, so there is five feet of wall already there and added on top of that. >> i think this is not going to finish tonight. >> i understand that, but i'm setting the stage, commissioners because -- >> vice president by the way,

now. >> yeah, vice president. i can't understand what you are. so anyway, moving forward, i'm just trying to set the stage for what i'd like to request of dbi so we come back here prepared. all right? so we know what our time lines are. what was up there, done legally and illegally. i'm sorry i have to go through this meticulously, but i have to go through it meticulously. so this structure was not done with engineering plans. this structure was kind of put together and installed and electrical came from somewhere. from what electrical service did the electrical to serve this 500-square foot unit come from? >> from the existing service. >> from the existing service. and was anything adjusted that might have been installed by the restaurant or approved by the

city for the restaurant? was anything adjusted or interrupted or changed that was already certified by the city with regard to the restaurant that may have been adjunct to service this 500 square feet. >> that is better for the architect to answer. it's hard to rebuttal. >> i understand. and this is a problem. you both are a poster child for this is what happens when we get something -- no brief and nobody files a brief and nobody pays attention to the rules of the commission. so, thanks. you've helped set the standard for what i'm going to ask for anyway. >> thank you. >> thank you. we'll now hear from the planning department. >> do you have any more

pictures. i found a better photo from 2018. if i could have the overhead please. [please stand by]

>> there is always something new and exciting every day in san francisco. i doubt the seismic issue is something more for d.b.i. they will speak to that. >> i have one question, mr. sanchez. according to planning's approval , it would require a 5- foot frontal setback? >> correct. >> can you put your picture up and describe what that would look like? >> i did briefly see the plans

that the permit holder has. it would be to cut back this whole front portion. you see where there is a notch? they could essentially be carrying it all the way across. >> it looks about 4 feet so they have to cut in a little bit more >> it is 5 feet and 5 inches which is what is specified in the planner's approval. >> thank you. >> thank you. we will now hear from the department of building inspection. >> commissioners, not much to said -- to be said. i think probably is looking for continuance here to give us a chance to look at this one. when you give these people dates , and we wouldn't have to be continuing this. there is also stuff from the permit holder here that i think is -- there's probably in need

for someone at the senior level of d.b.i. or inspectors to go down there and have a look to see what is going on so we can get to the bottom of it. >> can we have a field trip? i want to go. >> no, thanks. [laughter] >> i can bring a couple of people down there with me. on the electrical work, whatever was done with a permit will have to be legalized. anything that was done will have to be legalized. >> the concern is that from the member of the public that spoke, the person who owns a restaurant , is that she felt that the electrical equipment and permitted work she had done for the restaurant had been relocated, and then she also mentioned that, you know, beautiful green tag that you are so proud of when you get your electrical service was removed from her service and attached to another person's service. that would be a big concern to me. >> on the 203rd of december, 2019, there was a notice of violation.

i do not have the details. they are also under violation. >> i think going further we want to keep an eye on that and make sure what it is is -- >> our inspectors, their division is tough and stringent, in my opinion. i think they will get to the bottom of it. i couldn't understand the public comment that an engineer said that the building wasn't strong enough. i don't know if it was the engineer that defined it. >> i think the engineer said the vertical load is compromised because of the additional weight >> d.b.i. has no problem going back on the review to make sure it was reviewed properly and also to make sure that what they are saying on the drawings are reflective of what they have in the building and how they will fix it. >> i would ask that if we happen to move this to a future date for further discussion that

d.b.i. come back with some really tight guidelines to help us move this along. so those guidelines might relate to, okay, how far does that setback -- for what is going to happen if you all the city requires that 5-foot 5-inch setback? i would like to have d.b.i. know exactly whether a previously approved electrical service was compromised and rejig her at the behest of the building owner and some specific direction on that. just really a very, if you would , a tight inspection. you can come back and say, this

is right, this is wrong, this is what needs to be done because we are going to have to move something forward. >> yeah,. >> and we might as well get clear and transparent information from a neutral inspection, which i hope d.b.i. would be that neutral inspection on behalf of the citizens of san francisco. and then we can find accordingly is that okay? >> of course. if this permit is wrong, we need to know it's wrong. it will be back again because they have a permit, and if it is not correct, it will need a revision permit which is appealable. we are back again and we end up with these things. it takes two or three years to get them through. but hopefully a good site visit. i will take electrical out there with me and we will take a few people out and see what is going on.

>> in anticipation of that question that always comes up with regards to who is versed -- whose responsibility it is to get an engineer out there and protect one or the other's interest. can you give us chapter and verse for the benefit of the appellant and for the benefit of the building owners what your expectations are or what we need to have from engineers and representing them to ensure that those questions with regard to, in this case, vertical load, are answered? >> excuse me for interrupting. i need to excuse myself for you to approve a previous commitment >> i become the president the first night? [laughter]. >> she said i was presiding president so, you know, we will have an argument about this. anyway. thanks. >> i don't want anybody, apart from the building owner, having to spend money on engineers. they shouldn't have to.

d.b.i. has engineers. there are structural engineers. there is an engineering design criteria. if it meets it, it meets it. >> if they want to come in later on with some other engineer and dispute that, that is on the appellant and the tenants in the building, but certainly from my point of view, we will review the drawings again for the structural design of what this work was to legalize this. >> and you also might recommend that the building owner have their own specialist, that is, engineer who has done a full study and can support or deny whatever d.b.i. is not doing. >> that should have been done already. we are only redoing it if everything his right. we are hoping that was the case and i can come back here and tell you the review was okay and there is nothing wrong with the review. that would be something. one thing i will say to the owner, building an addition on the roof of the building anywhere in san francisco is --

i don't get it. i don't understand it. it causes so much, you know, work for our department, for planning, for everybody. i don't know what they are thinking. i wouldn't do it anywhere in the financial district. it's just stupid. it is. dumb. and now having to deal with it later -- >> i have never heard you say that, to be honest. >> i just don't understand it. people do it and make bad decisions and now we are here. if someone from the public wants to bring something into the brief, whoever it is, put it all together. would love to read that beforehand. it helps us for our research and before i get up and speak. >> it is your recommendation to make it very clear, your recommendation that the testimony we heard here on behalf of the restaurant tenant, that any information that that tenant has or any tenant has with regards to this item would

be brought to you and put into the placement for the brief so we can all work in advance of hearing it again if indeed we are going in that direction? >> and i would say as well that they are going to be in that building together hopefully someday and they will have to get along. and to hear something that was an addition being built on the roof and nobody knew what was going on, if you were on the ground floor and don't know what is going on in the roof, go up and find out. maybe that is where the complaint came from. somebody said they didn't realize the addition was being built. i find that hard to believe. let us know about these things beforehand. we're going to try to get to the bottom of this one and come back with a good report on what we find and maybe the permit won't be any good or maybe it will be fine. >> for my advice in the commission's advice in the building owner's advice, could you possibly come back after an inspection and say, this addition, which was illegal in

the first place needs to come down in its entirety? >> yes. >> that would be the ultimate consequence. >> or the load may need to be carried to the grounder something like that. that is what we are looking at. i did not see any plans yet. i saw some supposed -- some sort of small drawings. >> i want to put out everything and what could happen so everybody one they are coming back into this room will understand the potential that we are considering from, you know, cleaning up the mess and trimming the whole structure. >> we have done permissive legalize things before. it is important they do the proper way. do not do it wrong. try to get it right the first time so we're moving in the right direction.

>> commissioners, this matter is submitted. >> what do you want to do? >> let's go have drinks. >> there was no brief -- brief supplied by any appellant or permit holder. it puts this board at a loss. when he have nobody here to explain the work that was performed, there is a problem. from what we heard tonight, honestly, i haven't really done this in seven years. i would have even revoked the permit and have it start again, to be honest. in this case, since there's so much interest in making sure this is done right that i would recommend that we stay ahead of this. i think we would have to continue this. i would like -- i would

recommend a site visit from both planning and building. planning and building. pay attention, kids. >> so that we could further get more information in regards to the actual work that has been performed on this building. not making any accusations either way, just so we can get a full -- please turn off your phones? so we can get an accurate description of the work that has been done, that has been performed and needs to be corrected. i think, from talking to the permit holder, how long will that take you guys to figure this out? >> my recommendation is we continue to april 1st. i know there has been a lot of communication needed to be improved between all the various parties.

we are working with the waste this, with planning -- >> when did your firm get hired on this? >> i think it was the end of the week before last. i think we're starting to get things sorted. >> not trying to throw anyone under the bus here. >> this is what we do. we are trying to sort through this. we understand communication needs to be improved. i'm hoping we won't have to come back here and we can resolve any issues and everyone will be comfortable and you don't have to see us again. >> and the appellant for april 1 st? >> we may not have a representative from the planning department on department on april 1st, so ideally -- >> is the beard going on vacation? >> april 8th or april 15th. >> april 15th? >> then we can avoid april fools' day. >> unless you want to come forward. thank you. >> thank you. >> the april 15th works? >> we didn't even vote on it.

>> a question would be whether building wants to do its inspection after or before and how much time they need. >> i think that there's so much junk around this, for lack of a better word. >> it will get cleared up because we didn't have briefs. >> do we want to reset the briefing dates april 1st and require briefs? >> i would request that d.b.i. do a site visit for a variety of reasons. >> did you want d.b.i. and planning or just d.b.i.? >> i don't care whether planning goes out there or not. certainly d.b.i. because what is going on in the record here tonight is the suspicion of meddling with equipment that was previously

inspected and approved and therefore, might have rendered -- >> we will gauge that. let's get through all that stuff >> my question is, might it be more helpful for d.b.i. to have briefs in hand and can perhaps members of the public say no to what they're looking for? >> it's pretty clear what has been said this evening. at which point i think, come on up, the price is right. >> i would like them to e-mail me if there any concerns and i can look into those if they want i will give my chart to whoever wants it tonight and they can e-mail me on any concerns. that might be the best way to do it. >> i think so, too. thank you, joe. april 15th is fine with everybody? >> did we want to allow for

additional briefing or no? >> additional isn't quite the right word. >> i think we should rehear the whole shooting match because this waste of time tonight, which i consider a valuable waste of time, but it still has been a waste of time because we are dealing with no facts whatsoever that are subject to a brief. they are subject to plans, they are subject to anything. that is why -- >> let's move it on. >> you want to reset the process so everyone gets seven minutes? >> i think that would be prudent >> okay. will you permit her to speak at this point? >> would be possible to do april 8th? i think that was the date. >> april 8th is fine but we will be missing commissioner tanner, i believe. >> we will still have four commissioners so you can still

work. >> april 8th? councillor in the back? >> thank you. >> thank you. >> april 8th. so we were talking about it. do we have a motion? >> my motion is to continue to april 8th so the department can further investigate -- >> to a site visit. >> -- to a site visit to see what the current site is, as well as to allow the parties to provide briefs to the board? i will e-mail out the briefing schedule tomorrow. on that motion to continue this matter to april 8th... [roll call] >> that motion carries 4-0 on the matter is continued. >> i will make the new vice president the president right now. >> okay. he is now the presiding officer. >> i have my president badge. oh, my god. >> thank you. we are now moving on to item number eight,.

malcolm young versus the zoning administrator. 838 grant avenue. letter of determination that the nonconforming restaurant used on the fifth and sixth floors of the subject property has not been discontinued or otherwise abandoned pursuant to planning code section 183 a. the determination is based in the fact that a permit was submitted within the three-year discontinuance period to significantly renovate the restaurant space. additional permits were subsequently issued for additional work for the restaurant to use. all of these permits are still active and the work and associated inspections have already begun. this is record number 2019. and we will hear first from the appellant. >> and prior to this, i also need to make the same disclosure i am a partner in a project that hired the law firm.

their appearance before this body this evening will not have any effect on my decision. good evening, and welcome. >> good evening, commissioners. i'm here to request a continuance on this matter. unfortunately we need additional time to seek alternative council we engaged council on this matter. council filed for a continuance. the continuance was not granted. we were not informed of that matter and i learned the continuance was not granted late last week whenever i checked the agenda and found that the item had appeared on the agenda. we attempted to contact council on several occasions before the weekend. we did not receive a response until this afternoon at 1:00 p.m. we received an e-mail, at which point council was still attempting to try and appear.

however,, given the fact there had been no briefing, we were concerned that the preparation wasn't there and therefore, we were moved this and so i'm coming to you to seek a continuance in order to replace council and file a brief and get a full and fair hearing. >> okay. so why don't we stop the time and we will give the determination holder an opportunity to respond to your request for continuance. is mr. rubin here? please, be seated. you have three minutes to respond. >> thank you. >> this is for the continuation request. >> thank you, commissioners. i'm typically more than willing to work through these issues and i don't want to hold people up on technicalities. i am just speaking solely for the continuance itself.

we have a restaurant and two permits were issued for it. no appeals were filed. we have a letter of determination that has been subsequently filed trying to call into question the use. the zoning administrator denied that. we still have not had any briefing filed by anyone on the other side and i will say, this is literally the first moment i have heard this. we have a restaurant that is ready to operate right now. the work is done. the permits were issued a long time ago. we had a liquor license that was held up up until this month. typically i would be more than willing to work through this, but considering we're just hearing about this now and considering we have a restaurant ready to open right now, we would not be in support of the continuance. thank you. >> commissioners do you want to make a motion? >> can i talk to planning? >> yes?

>> feared the beard. wow. what is planning's position in regarding to continuing this case? >> when contacted by the appellant when they made their initial request for the continuance, we agreed we don't have an issue for these issues and we defer to the parties and would have them tried to work things out. one of the things to consider is this is a letter of determination that was requested by the appellant. this is not an entitlement. in terms of how a continuance on this may delay the opening of the restaurant, we had held the referral for some time to see if this would be resolved and after reconsidering that, we approved that. i don't know what and how this may keep them from opening. we are fully confident in the letter of determination and we agree with the permit holder here that the appropriate time to challenge all of this was at the time when the permits were

issued. no appeal was taken. because no appeal was taken, those permits were issued and work was completed. they are not suspended by the action of the board on this letter of determination. i don't know that a continuance here will matter. if the board overturns the letter findings in the letter of determination and says that this use had been abandoned, then we would have to take a different action then we have been taking on all the permits and all the other actions. it would be a whole another thing we would have to figure out at that time. i differ to the permit holder here how they feel this may prevent them from opening or what else they may need that they haven't gotten. >> are you aware of any type of prejudice they would be exposed if they operated the restaurant between now and an eventual decision of this appeal if we had granted the appeal? here ?

>> if they have already hired their staff, then i don't know what additional expense they can incur. >> sorry, what i mean is, would they be violating any rules to the planning code or anything you are aware of in operating the restaurant? >> no. >> thank you. >> does that change your view about a continuance? >> thank you, commissioner, for the opportunity. i will make two points. in a typical situation, if we had a permit that was issued, we had a back and forth and we had issues on the table. i would say, no problem. will emphasize once again throughout this process we still don't know. this is starting to feel like an abuse of process. we have not heard anything. there has been no calls, there has been no contact. i think that it puts pressure on -- >> my question was, given what

mr. sanchez said, what is the harm in continuing it? the appellant is saying essentially they are attorney able to, which is not like the last case when the attorney just did not file a brief even though he was retained before. i see those as different. my question is, to be nothing wrong with you operating the restaurant so why not continue the case? >> i'll make two points more direct. >> briefly, please. >> sure thing. i do think this is an undue and unfair present -- prejudice on the operator at this point having put so much money into this and being ready to open. but should the board feel like a continuance is appropriate here, that is fully within your authority. i would just ask that there be -- the permits are not closed yet. so i would ask that, you know, you direct staff that permits will not be held up because of that. thank you.

>> okay. in the past, as my fellow commissioner just said, there attorney has -- is not able. unfortunately they found out, whether true or not they found that out yesterday. in the past we have always given that additional time because, honestly, this is your last shot here in san francisco and we would like you to be able to take full advantage of that. i believe that representation, proper representation should be allowed. and because the department indicated there is no harm in this particular situation, i personally would move -- i mean, could you come up, mr. young? how much time will you need -- have you spoken with council yet if you have any particular council in mind?

>> we wanted to request two months -- >> that's not the answer i wanted, but okay. >> i'm just being honest. i will not lie in front of the commission. we are requesting two months to seek council and get a briefing in and be able to hear the case. >> i'm not calling for a filibuster, but just so i understand as a basis of your appeal, essentially you disagree you believe there was discontinued use? >> you just disagree with the planning department on that? >> i don't want to get into the merits of it without council. but as i understand it. the theory is that whether the adequacy of a permit, you know, can actually continue the use, only want to look at whether there was legal precedent one way or another on that, and then also whether the permit was substantial enough to actually

justify the continuation of the use. as i understand it it was a permit for a bathroom remodel. >> okay. >> again -- >> thank you. >> two months is a long time, though. >> thirty days? >> three weeks. >> three weeks is tough because of the briefing schedule. >> we are very busy in march and we will have some cases move off on february 19th. we could put them in their. >> i know it is short, and you have a fair idea of what you want the council to explore. hopefully they can retain council that person -- performs their do teach -- diligently. >> the permit holder has to file a briefing. >> they're brief is thursday prior to the hearing. let's look at the calendar. >> i want to make sure everyone

gets a fair amount of time. [please stand by]

so, i mean, we have to alter the briefing schedule. what do you recommend, counsel? i mean that's the reason why i wanted a month, just because -- because of the briefing schedule. >> not back here until april, though. that's the schedule. >> we're just very busy in march. >> we can put it on. i'm willing to stay. >> what if we have the appellant brief due the week before. >> the permit-holder needs an opportunity to response to the brief. >> the respondent's brief could be the 17th and we'll take it digitally.

>> if they file on monday? could they file their brief on the 17th. >> is that enough time for the permit-holder, if the appellant served their brief on february 12, wednesday, and then you serve your brief by monday, 17th. >> i see mr. young shaking his head. could you come to the -- please. >> thank you. you know, that's approximately 13 days. i'm just, you know, considering that we removed counsel today, i'm concerned that whether we can engage counsel and then get a brief filed, that is meaningful, within 13-day window. so -- >> unfortunately, mr. yeung, i think we're stretching it by allowing this time. because if we go further, it's going into the two-month period because of the scheduling. >> three months. >> is there anything else after february, before the end of time?

>> it's tough, sir, but it's an allowance. and we don't make it for everybody. i do apologize, but we're very busy and our time is the people's time, so we can't, you know, we can't be pushing off other appeals in order to help out. >> if i could just respond briefly. the only thing i would say, commissioners, just that, you know, there has been a determination this wouldn't hold up any additional permits. >> we're aware of that. >> given that, i don't quite get -- >> i would like to point out that your brief was due at january 9. at that point you should have been aware it wasn't filed, what was happening with your attorney. >> we contacted her numerous times, and received no response, but... >> thank you, sir. >> so you make the briefing schedule. >> i move that we continue this to february 19 with the appellant's brief due 12th of

february, and the respondent's brief due february 17. which i guess can just be distributed to us digitally. >> okay. electronic service, okay. >> but, wait a moment. key piece here. this has to be attached to a -- with a direction to d.b.i. or the appropriate issuing body. that no permits be upheld or postponed, suspended. then all permits should be approved if for the -- unless it is for another reason other than the postponement of this action. okay? because personally, i'm not in favor of granting this, because i have a position already on

the -- i think it's going to be clear, but having everybody giving their fair dma court, but -- day in court, but i'm symptom thre-- sympathetic to t permit-holder. they have a significant risk. they are ready to open. they have followed the rules. and i personally don't think it's fair to subject the permit-holder to any further economic risk or stress related to the opening of the space. so you know, i don't -- i'm not in favor, necessarily. i'll support it with the caveats, but i really don't think it's right to subject the permit-holder to any further aggravation on this matter. or financial risk. and if we find that, whoops, letter of determination was wrong, then we can deal with it

then. but i don't -- i'm really -- i'm hard pressed to suspend this further because the appellants didn't get the support that they thought they were going to get. they didn't -- they weren't diligent in managing the process accordingly. so let's -- again, i'll support the motion reluctantly, but only with the caveats this doesn't hold up any permits and the restaurant is allowed to open. >> okay. so we have a motion from commissioner santacana to move this item to february 19. i must ask, is there any public comment on the motion? okay. seeing none, on that motion, vice president honda aye. tanner aye. swig aye. okay, so that motion carries.

matter is continued until february 19th. i will e-mail out the briefing dates tomorrow. okay. thank you. we are now moving beyond appeal number 19-124, michael murphy versus the planning commission. subject property 3945 judah street. eye peeling the issuance of november 7, 2019, to michael leavitt. adopting findings related to home sf project authorization pursuant to planning code section 206.3 for democrat rigs of existing one story commercial building formerly utilized for the operation of a gas station, and the construction of a new five-story over basement, 55 foot, approximately 19,160 square foot building.

2044 square feet of space, 7 off-street parking spaces and 24 bicycle parking spaces. ground floor in excess of the height limit in exchange for providing 25% onsite affordable dwelling unit. the proposal is pursuing zoning modification from the rear yard requirement pursuant to planning code section 206.3. >> madame director, we're going to take a five-minute recess, because the last one took a while. >> can i make my disclosure before we take the recess? >> sure. no. >> we can't make a disclosure. >> i have to disclose that i have retained the law firm on items before, and that relationship will not have any

impact on me drerning a fair judgment on -- rendering a fair judgment on this mat. >> i feel so much better that someone had to make a disclosure other than welcome back. >> welcome back to the january 29, 2020, meet offing the board of appeals. we're now on item number 9. and we will be hearing from the appellant first. mr. murphy? >> good evening. welcome. >> you have seven minutes, sir. >> i don't know if that mic goes high enough. >> i often experience this problem. honorable commissioners, executive director rosenberg, good evening. my name is mike murphy. before i start, i'd like to thank director rosenberg and clerical staff at the board in their work for providing for the

hearing and commissioners for your advance consideration of the records you have before you. i live a couple of blocks away from the proposed development with my small family. i'm a teacher, not an attorney. my wife is a nurse practitioner and our 12-year-old son is a middle school student that wants me to state for the record that he does not wish to drink gasoline. i keep my promise. i represent neighbors and those who couldn't attend. we've donated time and resources and it's our desire you deny the authorization for the development at 3945 judah street. as the exhibits show, the planning commission erred by issuing a authorization. members of the public expressed concerns. commissioners questioned aspects of the proposed development.

and it's in their authority, in their evaluation, in the decision-making process to make decisions based upon those -- that evidence. commissioners were misled by statements made by the project sponsor. commissioners also expressed concerns relating to their role in the administrative process. this exhibits -- the exhibits illuminate this process problem and validates concerns of the members of the public. significant, adverse impacts that the proposed development poses are real. i'll highlight some of these adverse impacts for you now as i go through the exhibits. i'm not going to get through them all. it's extensive brief, but bear with me. construction on the site without removal and remediation of hazardous materials that may

contaminate ground water poses a threat to public safety. this is what i have here, exhibit "d", is diagram that was production 1986. i obtained it via public records request. department of public health. anyone can do this. the project architect has done this. these tanks are located as you see here on the project property. also, underneath the sidewalk, and underneath the street on judah street. this is significant because the public infrastructure, including the -- and judah runs adjacent to these storage tanks. once i got this information, i

notified all parties of the potential for adverse environmental impacts. water testing was done at the time of the tank closure in 1986 and clearly showed that the two 3500 gallon gasoline tanks were leaking. i have that evidence for you as well. these are the water tests. the only water tests interestingly enough that have been done on this property. this is one. you'll see it clearly says it's a water test. and thinks done in -- this is done in 1986. and here's another, the results are significantly higher. you'll see the parts per billion in total hydro carbons, benzenes, those are at levels of 400 to 700 times above the allowable concentration.

it does feed into our drinking water so this is matter of concern. i notified and had telephone conversations with officials on the federal, local and state levels. exhibit c is the fruit of that. and as it got down to the department of public health who regulates this program, under article 22a of the health code, you'll see that they indicate that development of property cannot be performed without proper tank removal. this is an interesting condition because the tanks are underneath the sidewalk and the street. they need to be removed. this is an llc that owns the property now, is responsible. they've ignored the department of public health's request for testing on the site. we use public thoroughfare, we

drink the blended water. all of us drink it. i have a map of the watershed that shows three projects in the works. you may see them on your docket soon enough. hopefully, i can get them up there. thinks the one on -- this is the one on judah, one on noriega street, one in construction. they took the cap off and let rain water, 22 inches, fall on the site before they took the tanks out. this is another one on laughton. and $8 million home sf project. commissioners were concerned that the financing would fall through. it did. it's coming back as home sf project. the site evaluations for that particular project are about six years old. there has been continuously operating gas station on the site since then. community members express

concerns regarding adverse environmental impacts at the planning commission hearing. and you have the minutes. i hope you have taken a look at the minutes. if you have not, please do so. the members of the public indicated, myself included, indicated we had concerns. the planning commission said they could not do anything about the concerns. the toxicity of the ground water, the potential for the sinkhole on the street, the neighbors concern about height bulk massing, potential impacts on the neighborhood. none of those were considered. whether those -- this has been in the works for six years. whether those six years -- [bell ringing] >> thank you, sir, you'll have time under rebuttal. >> thank you. >> we will now hear from the project sponsor.

>> good evening, on behalf of the project sponsor. i want to begin by speaking about the home sf program under which 3945 judah was approved. it was created by the board of supervisors to encourage new housing and affordable housing throughout the city, including the outer sun set. it grants bonuses to projects that voluntarily exceed housing requirements. 3945 judah is what home sf was designed for. in a neighborhood that has produced almost no housing in decades. without home sf, a total of only six units could be built on the site with no affordable units, because the ordinance only applies to projects with 10 or more units. instead, my client chose to build five onsite affordable units comprising 25% of the

units. that qualifies the project under tier 2. they're eligible for bonuses, one additional floor, ground floor height bonus and modified rear yard. contrary to what the appellant said, the planning commission did consider objections to the project at hearing. the commission heard from many proponents and supporters of the project. the commission unanimously approved the project as proposed. the commissioners acknowledge it will be taller than the neighbors, and have less parking, but found that the project benefits, including bmr units, 20 new homes warranted approval. the commission did not abuse its discretion in doing that. it implemented the city housing objectives as expressed in home sf.

before architect michael leavitt gets up for a presentation, let me address the two grounds of appeals. he claims that two closed storage tanks will cause ground water contamination and the planning commission should not have approved the project. the argument is without merit. as explained in the brief, the removal is under the jurisdiction of public health. not the planning commission or the planning department. d.p.h. implements its authority. article 22a of the health code. it requires project sponsors to enroll in the program prior to land use permits and requires approval of a site mitigation plan prior to the start of construction, but there is no requirement anywhere that s.m.p. be approved before land use entitlements. the planning commission and the

planning department followed the rules by conforming that the project was enrolled in the maher program before the november hearing. now the ball is in d.p.h.'s court, which has requested preparation of a phase 2 work plan. that is being prepared. once it is submitted, d.p.h. will evaluate the work plan and require an s.m.p. mr. quinlan will need to implement the s.m.p. assuring there will be no ground water contamination. i would note that the appellant never appealed the ceqa determination that relied on the enrollment to the maher program. the time to appeal that has passed. mr. murphy secondly claims there were improper noticing to the planning commission. i won't get into that, because we didn't discuss that. mr. sanchez can confirm the public was adequately notified

of the planning commission hearing. now i will introduce mr. leavitt. >> welcome, sir. >> good evening, commissioners. can i get the screen, please? >> oh, you're using -- >> the laptop, thank you. michael leavitt. leavitt architecture. i'm dealing with the scale of building. the first slide here indicates the site and the red on the site indicates commercial buildings either entirely commercial or partial buildings on the site. you can see this is anything but a purely residential area. this is a view looking up to judah street looking toward the east. the site is to the right where there is the billboard. this is a view looking towards the west, towards the ocean. and what this slide represents

is the building itself, which is the green portion of the building, the red portion above represents what is allowed by home sf which allows a 20-foot increase over the existing -- or over the given height limit. so we could have gone to a 65-foot height, we chose to keep the building at 55 feet thinking that was more appropriate for the neighborhood. there were people at the commission who actually advocated for going the full height, thinking that we could get more b. mri units in the -- bmr units in the building, but we thought this was pushing the envelope too much. this is the view of the proposed building from the corner of 45th. and judah. and just to describe the building somewhat, we noted that the building would be larger than the existing buildings in

the area. we decided to create a material pallet on the building that reflected the relaxed informal feel of the beachside community we're in. and it would make the building more approachable. the entire residential portion of the building here sits atop of board-formed concrete base. it's open on both street frontages with floor to ceiling store front glass which allows the commercial space to connect to the pedestrian level. we're connecting the sidewalk with planting, seeding and so forth. [bell ringing] as the building turns the corner onto 45th avenue, the main mass of the building steps back in relation to the smaller scale of the buildings along 45th avenue. this setback is seen here from 45th, also allows additional morning sunlight to reach a street level park lit immediately across 45th that is at outer lands.

[bell ringing] >> thank you, sir. your time is up. you'll have time in rebuttal. >> thank you, we'll now hear from the planning department. >> thank you. president honda, scott sanchez planning department staff. the matter is appeal of home sf project which i heard recently, probably the last hearing was the last time -- >> you mean when we called the sheriff's, that hearing in >> yes. so they approved this november 7 of last year and the were item is tier two project, seeking height by one story and five-foot bonus for the ground

story. it does proposal a number of dwelling units and providing 25% onsite affordable. i think most of the issues raised by the appellant relate to environmental review. as noted by the permit-holder, there was no appeal of the ceqa determination and the ability to appeal that has passed. the issues raised by the appellant are all addressed through the department of public health process under the maher ordinance. under this proposal, under this ordinance, the department of public health has the authority and jurisdiction of this. so what is before you is the planning commission's entitlement application. this does not authorize construction. they need a building permit application. the building permit application which we have not yet approved because of the pending appeal of this matter, once it's approved it will be brought to various agencies.

it cannot be approved until the department of public health has all of their requirements met and satisfied. i heard from the appellant there are concerns about existing conditions related to leaky storage tanks. so the proposal here will ultimately, through the department of public health, resolve and improve on the matter. so if there is concern about existing conditions, a way to address that, rather than entombing the tanks, is to actually have that addressed. and this permit, through the maher ordinance, through the building application process would be addressed by the department of public health. so with that, i'm available for any questions that the project does approve by the planning commission meets all the relevant requirements of home sf program. >> thanks. i'll share an opinion at the moment, but then share a fear.

i'm in support of the home sf program. this complies with the spirit of the program and i have no problems on that portion which is the architectural design and the building's siding and structure. however, with regard to that tank, man. you know, that is -- i think -- i'd like this place special emphasis on that tank. you know, having been -- having had a home in san francisco, not the one i currently live in, but prior home where we had a gas tank in our front yard left over from 1927 when the building was built, and we had to have it removed along with everybody else on the block, because there was just a fear that a dry

80-year-old tank at that point, had some impact. and it was mandated and it went away and it was required and not one of us balked, because it was a fair judgment as we all thought. second, having been involved in commercial real estate and hotel real estate for a long period of time, i have acquired buildings where a tank was next door. and there was a huge focus on creep, that is creep down, downhill or sideways, of an abandoned tank that would have junk, poisonous things that would creep onto the land next door, which i intended to purchase. and so i'm very sensitive to tanks.

i just wanted to giving you the background on that. what can we do in this hearing -- and i fully support what the appellant is bringing up. what is our parameters here with regard to addressing that tank? or is this something not for discussion today? and secondly, given this is just an approval of a right to move to the permit process, will -- if this tank issue is not addressed as a result of the hearing, will the appellant get another bite at the apple to ensure that this tank is removed and that the site is fully cleaned up? >> thank you. so i believe it's appropriate to have the discussion about the tank at this hearing. obviously, it's been raised as a concern. i think we can educate about the

process. so i think in terms of ensuring that the tank is properly addressed and remediated, that is through the building permit application process, which is not before you. so if the board upholds the home sf, the planning commission approval of this, then we would approve the building permit application, it would continue on to the various agencies. the department of public health would not issue the permit until their requirements have been met. through that process, the appellant or any other interested party can check in with department of public health about the status of the application and ensuring that the relevant requirements are met. if those concerns have not been addressed, they can address the issuance of the site permit to the board of appeals, i believe it's 15 days from the issuance of that permit. and there is no reason that matter can't come back before the board and that and any other issues couldn't be addressed.

but i think the -- given a lot of these issues are environmental, the appropriate process is appeal of the environmental determination. no appeal was made. now we're on the planning commission decision. and that decision requires them to follow the safe removal and abatement of the tank issue. that is through the department of public health. and through the permitting process that will be resolved and if it's not satisfactorily addressed to the satisfaction of the appellant, they can appeal it back to this board. >> so in this city, we have a housing emergency. everybody i agrees. the mayor and the appropriate departments are leading the way to develop housing as fast as possible, which i have no opposition to and find fully

appropriate. but when sometimes when things are rushed for the right reasons, appropriate fears are overlooked potentially because they're in a rush to get it done. so how does this body and this commissioner get satisfaction that in the process of the urgency of getting this project done potentially, if we move it forward in some way, how do the fears of this commissioner and potentially this body with regard to the omission of not dealing with this potential tank problem and the environmental problem which is associated with it, how do we call special attention to this if we potentially move this forward? >> so i think, yeah, at this point there is no cause for concern, because the appropriate processes have been followed.

there has been no short circuiting of process, no one has been bypassed. public health has done what they need to do at this point. the work for them to do next is once we can approve and issue or have the site permit approved and routed to them for review. it's a step process. addressing those issues of the tank is held up by this appeal. once -- if the board does deny the appeal, the permit can be approved by planning and routed onto the other agencies that have a responsibility for addressing the tank. >> president swig: and is there a way in moving this forward in the form of let's say upholding the appeal with the caveat, this may be a later discussion, with the caveat of special permission, or special attention to the tank, is that necessary? or if we just want to move it

forward, we just deny the appeal? which is -- >> any condition -- >> which will give me comfort? >> any condition would be saying to follow the law, which is what you'd be doing anyway. so i don't know what kind of special condition or attention to be brought to it. just the fact that we had this hearing has drawn attention to this, highlighted what the process is, hopefully everyone is better informed after this hearing. the project sponsor i think is well aware of what their obligations are. they know they will not get a permit to build what they want to build until they go through public health. and deal with them. i've looked it epermit routing for the permit and public health ace station. that means it cannot be issued until public health signs off on it. so i don't see any flaws in the process. >> president swig: so the public health omits any action related to the tank and permit is

issued, then the same appellant tonight can come back and appeal the permit for the same reason they're appealing it tonight. >> anyone can file a permit on it for this reason or other reasons. >> president swig: great. that gives me comfort. >> can i ask a question? gas stations are redevelopment, i know you're not part of department of public health, is that a part of what they may require? >> that's my understanding. interestingly enough, the planning code used to have restrictions on conversion of gas stations, because the idea was to preserve gas stations, but over the last 10 years, we've removed the restrictions to facilitate development of gas stations to other forms of development, housing in particular. so as part of that process, it's standard public health involvement. and that's why i went and looked at the site permit, they're on there routed, they understand that's their responsibility. >> thank you.

any public comment on this item? how many people are here? can you raise your hand? three. okay. so if you could line up against the wall. and then a gentleman in the red and black shirt, we need to keep track of the speakers. if you wouldn't mind handing them back. sir, thank you. >> first person, please come up. let's make it two, because it's the last hearing. >> two minutes. >> yes, >> welcome. >> welcome, thank you for hearing public testimony. my name is david sheer, i'm the homeowner around the corner from the project. i got involved with the project just to make sure my neighbors were heard. and so i've been collecting information from the neighbors. and my main point with the process has been, there have been misrepresentations and exclusions in the process on the part of the planning department

and the project sponsor throughout, that i think are extensive and egregious that the approval can't be considered legitimate expression of commission approval. as mr. murphy pointed out, in the environmental portion, the two commissioners moore and richards asked specifically about the environmental issues and the project representative misstated twice that phase one was done and no phase two was requested, the site was considered clean. just moving forward, the approval, they've based it on concerns they didn't get direct information about. as far as the public hearing portion, i'll just state one section, 311 states that the public process should determine compatibility with the neighborhood so that concerns may be resolved during the review of the permit. in the draft motion, the planning department stated there

was no public opposition to the project. and in fact, there were 15 letters [bell ringing] prior to the development of the packet. the project representative stated there was no opposition at the pre-application meeting when there were 24 out of 30 people who signed in and stated opposed on the sign-in sheet. the planning department neglected to include all the portions of the general plan that talk about neighborhood compatibility or the public process. and only included things that supported the project. and you know, the most shameful thing -- [bell ringing] -- 400 -- >> thank you, sir. i do have a question. since you've been involved from the beginning, and you seem pretty informed, is there reason why, since you have an issue with the environmental why the ceqa appeal was not filed? >> why did you not file the appeal on the environmental portion of it? >> well, mike filed the appeal and i'm helping out.

i've been involved since the beginning because i'm architect? >> i said why didn't you file ceqa appeal with the board of supervisors. >> as far as i know there is no notification of the ceqa -- and for the public to -- i was involved when the posters were put up on the site three weeks before and i put up other posters with picture of the site and the place where people could give feedback. collected 400 signatures. >> thank you. next speaker, please. >> good evening. welcome. >> thank you. hello, my name is james na thole. i'm speaking as a resident and i'm a board member, we're a local advocacy group in support of more homes. i think we've heard a compelling case why this should move

forward, why you should deny the appeal and move onto the next step. we have a robust process. that's why we're here tonight. i respect that. and i'm glad we do that. but we also have a housing shortage. we know that some of the concerns that were raised tonight are going to be addressed later. that's part of the process. that's part of what was there. we're looking at homes in part of the city that doesn't build that many homes. they're not out of character. we've seen homes like that before in parts of the city. we can build them again. home sf is a good program. unfortunately, we still don't have a lot of examples of it: this is one of the first moving forward. i'm excited to see there. especially on the west side. i'm hoping you'll deny the appeal and move forward with the project. i think the people speaking on behalf of it have shown why

they've done their homework, they've done what is necessary to move forward and i hope you hear that as well. >> thank you. next speaker, please. >> good evening. thanks, commissioners. my name is bob. i also am a member of volunteer of the nb action. i live on the outer richmond, just a couple of blocks north of the project once you get past the park. i'm here speaking tonight mostly just because i want to see more housing built. i volunteered a lot to fight the past, the home sf program back in -- pass the home sf program, the appellant and several of his allies were fighting that program back then as well. i think we're in massive housing shortage. the west side of the city has not done its part. this project is an excellent opportunity to not only get 20 homes, but five only them below market rate, the program can't

even be triggered unless you get 10 units. while i respect the process, like my friend said, and i'm sure that the process is that outlined by the department of public health making sure that the tanks get removed will happen, i'm frankly fed up with theed in of people putting one reason forward for why they oppose something or filing an appeal for something, but they made it clear and it's well documented in publicly available documents like say the appellant's questionnaire when they were looking for the green party's endorsement back in 2018, that they just don't want to see housing built in the city at all. they think we have enough in pipelines that frankly, those pipeline projects in treasure island and in the shipyard, those are actually a serious environmental risk and those need serious review. i want to put this on the overhead. part of article from -- >> overhead, please. part of an article.

it says, that a report prepared by the san francisco environmental planning department said the project would not result in significant impact to traffic, air or water quality. murphy was a green party candidate and stated his opposition -- [bell ringing] >> thank you, sir. next speaker, please. >> good evening. i'm the chair of san francisco yenby. >> are you going to be using your laptop. >> i'm going to quickly show this. this is the actual reason the appellant is filing this appeal. it's not because of a gas tank. it's because he thinks the building is too tall and he thinks it looks like "star wars". he thinks making a quick joke about the building, he'll get press and the appeal filed. this is not a joke. this is about housing and giving people a place to live. people like me, struggling and

want to have family in the city. it's also a waste of your time. you shouldn't have to hear from someone who is making up excuses why he doesn't want to see housing in the neighborhood. it's running down the clock on 20 families, we can break ground for 20 families. five of them are housing insecure. why is he doing this? it's because he's afraid of shadows, but he says it's because of environmental concerns. i didn't see him at the shipyard hearings. i didn't see him when there was risk, he didn't come out to treasure island when we were talking about the homes we were going to build there. and he wasn't there when we approved 500 new homes in the wetland in california. he also in his original case said he wanted to shrink the size of the building. that won't fix the gas tank. that means there will be fewer

homes and a family who is housing insecure will not be able to move out of the shelter and into a permanent home. you have a choice tonight whether to honor this appellant's stated reasons, or you have a choice whether to move forward on building homes for 20 new families on the west side. that is a moral obligation to get those homes built. we're in a housing crisis. [bell ringing] >> thank you, sir. >> good evening. >> my name is eric caplin, i want to make sure we don't lose sight of the forest for all the trees. i pay $1800 a month for a 250-square foot studio apartment because we have a massive shortage of housing. the vast majority of san franciscans live in market rate

housing and we have a shortage because for the past 50 years too many projects like this one have been subject to endless delays and eventual denial. this project will not, by itself, solve our housing shortage, but we cannot solve the shortage without approving lots of developments like this. the appellant is making essentially an argument against building anything on this parcel. and i don't think that an abandoned gas station is -- piece of land, please deny the appeal and allow the project to proceed. thank you. >> next speaker, please. >> i live in the mission. i pay $3,000 for a tiny one-bedroom every hospital. and the reason for that is we have a massive housing shortage.

i pay luxury prices for a non-luxury apartment. and that's not okay. what is also not okay is that the outer sunset where this project is has added only 21 homes since 2011. this is only 20 more homes. so it's not really that many homes. the mission has been building, i don't know, hundreds of homes every year. i look out of my apartment and i can see so many homes being built in the mission, but we can't build all of the homes in the mission. every neighborhood has to do its part. why are we only building homes in the mission? soma? the tenderloin? bayview hunter points, all of the poor neighborhoods in the city, that's the only places we're building homes. we're not building homes in the sunset. that is because rich people like the appellant can always find

some excuse to deny a project. [inaudible] >> sorry. hard to listen. >> let's be respectful. >> sorry, can you stop this time. are you going to be a good boy here? >> i was born and raised -- >> you'll have your time, okay? let him speak, please. >> go ahead, sir. >> this is exactly what i'm talking about. people who just don't want people living near them who don't like more neighbors. and who frankly you know, i don't think that their appeal should be heard by this board. i think this is ridiculous that he is sitting here, coming up excuses about environmental issues just because he doesn't want more people living near him. >> thank you, sir.

next speaker, please. >> good evening, welcome. >> good evening, commissioners. my name is michael chen, i'm speaking at member of the mb action. i'd to make three points. i live next to an active gas station on van ness and pine. and for one thing, the gas station is noisy, environmental pollution, it would nice to have housing there, and project go in there to remediate the soil and adjust some of these concerns. so if a project that appears next to me, i would welcome it. my second point, as part of northern neighbors, we have advocated for housing in our district. we know that district 2 has not done its part to build more housing and low-income housing. in the past ten years, they've built zero low-income housing units and we felt fortunate to advocate for and help get approved the 3333 california

site which will bring low-income homes for seniors, with 40% of the homes verved for people in the -- verved for people in -- verved for people in the neighborhood. the last thing i would like to say is that, yes, we do have a great process in san francisco, but we have knowledge that this imposes cost on the project sponsor. every month of delay is another month where labor costs go up, where financing is -- where people are ready and waiting to do stuff, but you have to wait for the appeals to go. [bell ringing] i would please implore you to deny the appeal. the appellant will have another day at this board, have the option to do this. so i'm sure we'll see them again. i'll be here as well. thank you. >> next speaker, please. good evening. >> hi, good evening.

i'm a san francisco native of d4, for 37 years. i've no problem with housing in my neighborhood. i have a problem for housing for rich people. i'm a nurse and i will not be able to afford to even buy the affordable housing unit and rent it at my solid income. that means that everybody below me is screwed by these kinds of houses. no problem, you want to make 100% affordable housing, let's do it. let's build government subsidized. let's buy it from them. i live with three roommates and none of them can afford to live there either, only because my landlord is also a native have i negotiated affordable rent because he wants people like myself, non-overpaid. one art teacher, a nurse, h.r. runs a hospice. these people can't afford to live in the city, but we're the ones that keep it going. let's build housing, but what about the 5,000 permits of

affordable housing permits in my own home we can't build. we have affordable housing meetings with our new supervisor mar and had hundreds of constituents asking why can't i build a unit and rent to a teacher? we would love to do that. we're so obsessed with the large developments, but we have 75,000 permits that have not been granted and it's brought light to that in the recent article. i hope you look at this as a comprehensive issue and allow the appeal to go forward because it's environmentally dangerous to build on the tanks. we need time to look at what the people need and what is affordable for the people and not this above-market rich people housing. >> thank you. next speaker, please. good evening. welcome. i live within a block of the

project. i think it's -- you should note that you do not have people from nb action that live in the area. the community as a whole, there is exception that support as a whole, we don't support it. including outer lands, the restaurant they came to the planning commission and spoke to the project as out of keeping with the neighborhood. i understand it meets all the dots on san francisco, which i did oppose and i'm not a green party member, by the way. mr. mindi, whatever your name is. commissioner swig, you said we're in a housing emergency. we're not in luxury housing emergency. market rate at this point is luxury rates. you know that and i know that. and for the little tiny, they're going to be tiny and they're going to be the same $3 thousand, or around there is

what they consider affordable housing at this point. i own a building with two actual affordable apartments that are rented for under $1,000 yet under rent control. i consider myself an affordable housing advocate. i think that this board has a lot of people that feel that way. we want development on that site. we would have been happy if they worked with the community, but we didn't know about the ceqa thing or we would have filed for that. i don't want to be poisoned in my own neighborhood. that's number one. i also think this group did not work with the neighborhood at all. we have a special neighborhood. we're very open for affordable housing and we're working on that. we're literally working on that and you're going to see us. well, at least the planning department will see us under the affordable -- i did not oppose your project when it was -- [bell ringing] -- >> thank you, ma'am.

>> low level building. >> thank you. next speaker, please. >> can you hand -- >> can you please hand a speaker card to the clerk. >> the other point is that -- >> your time is up. >> you work -- >> you need to be respectful. everyone was respectful when you were talking. please. >> okay. good evening. welcome. >> thank you. so i guess it's really hard looking at some of these, but i live right next door to this project where it's going to be doubled and i have some things to address. we're not all rich. i work barely $3 above minimum wage. i live next door and i'm all for public housing. i know we're in a housing crisis. that being said, building a penthouse at the top level of this five-story building doesn't

sound like affordable housing by any means. we have legitimate concerns as neighbors. we do want this to be safe for both the people who are going to be moving in and both for everyone here in the neighborhood. as addressed, everyone here only wants it to be both safe and just in a way developed in way that is -- sorry -- >> relax, take your time. >> acceptable. in a way that is safe and with more public knowledge. because to my knowledge, living right next door, we had one tabling outside one day. and then the public notice, what, two years later? and that's it. and didn't receive anything in the mail. that's ridiculous. i don't see how this is addressing the public at any means. [bell ringing] >> you have 30 seconds. >> yes, um, so i respectfully

request that the board properly look at this appeal and please give us neighbors, who have been here, we've been here at the november meeting and i would like previously my neighbors have stated, 24 out of 30 have been opposed that project. and i don't see how that counts -- [bell ringing] >> your time is up, but i have a question. since you are the immediate next door neighbor. how long have you lived next door? >> we have lived next door -- i want to say let's see, sophomore year of high school, so six years? >> so you didn't live there when eugene had his shop. >> i lived on 45th and judah right before this. >> so did you have concerns moving next door to an abandoned gas station that would have tanks under the ground?

>> there were some, but even more so now because -- >> but those were neglected tanks and abandoned in a vacant lot. so you moved next door to an abandoned gas station and abandoned tanks and you didn't have concern at the time you moved? >> at the time it was -- i mean it's contained right now. and at the time when we moved in, i don't think it wasn't -- i guess it just wasn't something that we quite realized. >> so is your major concern the development of the building or a safety concern? i mean it seems to me it's more the development of the building rather than a safety concern. question. >> i actually am not sure right now because my dad is in the hospital and it's complicated. >> okay, thank you, thank you.

>> can you hand a speaker card to the clerk. thank you. >> i hope your dad recovers and gets better. good evening, welcome. >> commissioners, gabe. my first time doing this. and being in front. just coming from the community, i want to have my voice heard i guess. i guess i didn't really feel like i got input. but time in against affordable housing, there is nothing wrong with 16 units. they said they wanted six in the beginning. i mean, and then you saw the posters go up and this building is basically going to be five stories high and it's going to be a first. i don't see anything else in outer sunset. >> 45th and noriega. >> they're building right now, exactly. so i feel like we're the experimentation, which is more housing, fine, 16 units, but 20 units with extra height and

right now, they said there were going to be seven parking spaces for 20 units. my wife and kids, we can't even find parking. pack people in there and see what happens? i just really want to know what is going to go on. i'm sure you guys can work out the gas tanks, because you have to, but we're going to change the face of sunset forever. so four more units, i don't know. that's already safety, outer sunset, you guys live there, you know what it's like. i just wanted my voice heard. >> thank you. next speaker, please. >> good evening cory smith on behalf of the san francisco housing coalition. we've not seen this project individually, but listening to the conversations something has become clear, we do have an abandoned gas station that does have a problem right now and the

problem does need to get fixed. and that requires us going through the process, as mr. sanchez alluded to earlier, the best way to solve that environmental problem is to deny the appeal here today. so the public health can get in and get involved and set the standards for removing the problem from the site, testing the soil to ensure that it is safe going forward to build housing. and if it is safe, it is deemed safe, then the situation and the outcome that everybody is looking for will be achieved. so it's an odd situation where we are sitting here and listening to a discussion about how to solve something when we're on our way to that and this hearing is delaying us from getting to solve that problem. i understand there are a lot of conversations about there project and where it fits. but i want to say a couple of things. number one, home sf program does

include middle income housing. it's the first effort by the city before the june 2016 prop c to include subsidized middle income housing. it was making sure we were targeting professions like nurses, like first responders, like firefighters, because often times those people made too much money for the traditional subsidized house and this was a way to, not everybody is going to get taken care of, but to make a difference. the last thing, i hear that everybody here does love their neighborhood and i was out at the site last week. i look forward to more neighbors enjoying the neighborhood as well. and ask you to deny the appeal. >> thank you. next speaker, please. >> hi. i live in district 5. i've been asked to speak on behalf of west side equal best side neighborhood organization for the sun set. so jimmie, who is a sunset

native is working late. he is stuck in a meeting and john is at his kid's soccer practice. this organization has sent 40 letters in support of the project to the planning commission before november 7th and they also sent 50 e-mails in the past week or so to deny the appeal to the board of appeals. and they've also organized a 150 signatory petition to also deny the appeal. i'll also say that on a personal note, i live at page and fillmore and my neighborhood is three and four-story buildings mostly. and it's perfectly fine. there is really nothing wrong with my neighborhood. i love it. i love the vibrancy. i think a five-story building next to me across the street,

that would be just fine. and i'll also have that with home sf, this project has added affordable units which the previous proposal with six units did not have. i see this as an overall win. >> the best for last. welcome. >> no, that's okay. everyone gets excited. you should see me after we leave. >> okay. i was born and raised on 45th and judah. me and my wife raised our four kids there. i was very opposed to the scale and size of this project. when i went to the meeting in 2018, there was a lot of us opposed, but there was a letter saying there was no opposition. that's what the planning commission heard, but i don't know where they came up from that. i totally understand housing. i have kids coming up.

i love to see something built there. it's a huge -- it's so freaking big. four stories is cool, five no way. i think it's 70-something feet to the top of the elevator shaft. i love my neighborhood. i'm never go to leave. i can't wait to come back to the lower sunset. the environmental thing, when i heard that, i couldn't believe it. i figured all that was just very clear, talk about clarity and stuff and all these processes. and that came up after the fact, after everyone -- we were never notified. this neighbor here is the one that told us what is going on. went door-to-door. there was nothing in the mail. again, i'm all for building. no problem. no problem. four stories, that's cool. that's still bigger than i'd like to see. i'd love to see a park. but i really hope you guys slow

this thing down and let the community have a lot more say in what is happening here, because every one of my neighbors felt like what the hell just happened? is this really happened and the other neighbor said, yeah, it's done, the commission stamped it. and then murphy looked up stuff and we're starting to have a little hope. i know it's sad. i feel sorry for you guys, looking for homes, whatever. the city is tough. it really is hard. >> thanks, bro. >> thanks for listening. >> lincoln. sorry, dude. >> sir, do you mind filling out a speaker card? >> did you hear they're going to bring in girls there, bro? >> is there any other public comment on this item. >> thank you. >> we'll move on to rebuttal. mr. murphy. you have three minutes? >> do i get a couple of extra

minutes to accommodate my response to the character assassination or no? three minutes is all. >> and it's starting so use it wisely. >> i got it. why ceqa? the action of the planning commission constitutes the approval action for the purpose of ceqa. so i'll argue that the attorney here, his argument does not have merit. you here are charged with making the final approval of this action. i advise you to deny this project based on the fact that it's been on the books for six years. this has been on the radar for six years. all the d.b.i. information is clear. also, it's not a personal thing. this is an llc.

this is who knows who owns this thing? i see buildings going up around town. all i can think, there is another washing machine. they're not washing -- well, in this case, the issue is the site conditions. the these tanks are going to be impossible to get out. they have to dig underneath the street, drop them down. they have to contact, as i have already, to give the commissioner some assurance, i've contacted puc, mta, i've contacted all of the -- all the various agencies tonight and after meeting mr. duffy, d.b.i. is going to get a heads-up, too. so everybody is on the alert. so this project likely will not get built. i don't think it's going to get built. so what is it? it's not longer six homes. this is a financial instrument at this point. so if you approve it, approve it, the value of the property goes up.

and they're going to exchange it because the attorney for the llc is with pacific realty exchange and they specifically look at 1031 transactions. they're a boutique firm. so what i'd also like to happen on the site, is for the owner, which is now an llc, to pay the taxes. my neighbors and i work hard to pay our property taxes. they're high. and this guy hasn't paid taxes, this owner has not paid taxes in four years. in other year, this is going to go up at auction. how much real consideration -- [bell ringing] -- does this llc, this baseless corporation have for our neighborhood? and what do you do here when you approvie this entitlement. you raise the value of the land and you disempower the planning commission in making their

assessment. and you allow our planning department to shirk their responsibilities. they should have put this [bell ringing] >> sir, i have a question. so, same question i asked the young lady that lived next door. so how long have you lived in the neighborhood? >> i've been there since about the peak of the market. 20 -- >> which peak? >> 2006. >> okay. >> and we struggled. we still struggle. i'm not rich. i'm a teacher. >> how far -- you read the statement earlier that you promised your son he wouldn't have to drink gasoline or something -- >> that's right. very insightful comment. >> so let me give you history on the site. it was a gas station for a very long time. >> since the 30s. >> and then eugene moved there and he used to be an noriega and 30th and that property got taken over and there was a big 30-unit building there.

25 years ago, he moved to judah and 45th. and so he really didn't do gas. he fixed cars. >> i understand that. >> so those tanks have been rotting underground in there for a very, very long time. >> and sealed -- they're sealed in asphalt. >> so at which point, you did not have a concern when you moved to the neighborhood? >> i did not know. >> i knew anecdotally because i worked in the trades between teaching jobs, that the site was toxic. that's the reason it sat for 20 years. >> aren't you glad there is remediation happening to that rather than the toxicity? >> i'm not glad that what really happened here, we had a project sponsor who wanted to pull the wool over everyone's eyes and cut through the tank and entomb them in concrete. this is the way it looks to me. >> thank you. >> i'm giving you my honest opinion. >> thank you. mr. murphy, you heard from mr.

sanchez explain the process that would go forward if we deny the appeal, and the department of public health issuing a mandate for the plan to remediate the tanks. >> they've already done so, yes. >> so if the project sponsor carries through the department's mandate to the department of public health's satisfaction, is that the end of your appeal? do you have any other problems? >> this is one-stop shopping for me. i'm not going to make a career out of this. i do not want to litigate. >> your concerns have been addressed. >> my environmental concerns have been addressed. >> i peel though -- >> i will state that i saw what happened on noriega street and it broke my heart. >> i understand -- >> they opened up an let 24 inches of rain.

mr. duffy's face fell. >> thank you, you can be seated now. we will now hear from the project sponsor. >> thank you. i just want to briefly talk about the maher process that is under way. there is no short-circuiting of the process that has been involved by the planning commission approving the home sf project. the building was enrolled in the maher program in 2018. a year before the planning commission hearing. in december, 2018, and january 2019, the department of public health issued a letter confirming that the property is enrolled in the maher program, requiring a preparation of a phase 2 work plan before the project could be constructed. that phrase, brandon environmental consultant is preparing that phase 2 plan now. it will be submitted to the department of public health that will review it, evaluate and

likely require a site mitigation plan. either the one that is proposed in the work plan or a different one if they choose to do a different site mitigation plan. that plan has to be approved and stamped by d.b.w. the program is ongoing. the process is intact. it will ensure the tanks are remediated, likely removed or some other way to remediate the contamination. but the project can't be built or excavated until that s.m.p. is approved by the department of public health that oversees the implement indication of it by the -- implementation of it by the contractor. there is no risk of short-circuiting of the maher program, that the tanks won't be remediated. i'm here to answer questions.

i have an obligation to make sure that happens. >> so, there was just an allegation put forth that you're not the owner of the property. strictly a land speculator interested in the flip without any interest in development. can you give us background -- you don't have to identify the owners -- but can you give us background on your experience in developing housing, any like projects, so the public is rest assured that you're not a flipper and indeed you're a real live developer with experience in developing? >> good evening. welcome, sir. >> good evening. i'm the owner of 3945 judah and the owner of the llc that owns the land now. i live in san francisco. i am a building contractor by

trade. i work for people doing home additions, foundations, bathrooms, kitchens, you name it. i have, my wife and i raised our three kids on 32nd and noriega. so i'm from the neighborhood. i'm a contractor who from time to time comes across a piece of property that i can work on. and the last property i developed was in 2010. and it was a single-family home on alpine terrace. small home. before that, the previous one was 2007. it's not something i do all the time. i make a living being a contractor. working for homeowners and usually single-family home remodel is the gist of my business. so that's who i am. i'm not a corporation. i'm not a speculator. i'm someone who is trying to build something.

>> the concern continues with me because building a single-family home versus several thousand-feet, six-story very complex apartment building, there is a gap in the -- in that. >> i have been involved in multiunit buildings before. i built a 16-unit building in 1999. that was the last big one i did. but i'm not -- i'm not used to working on bigger projects. this isn't something that is going to be too big for me to do. >> okay, thank you for being transparent. >> thank you. >> i have a question for counselor or the owner. although i think most of the concern in the sunset and being a sunset resident myself for 30 years, is the size and mass that is not really before us.

but everyone seems to have asked about the safety. now i know in residential properties from being a realtor for 20+ years, is when we run into underground storage tanks, a property doesn't transact unless there is a report, and if there is one, it is generally removed. what i run into in the past, as commissioner swig said, generally homes that had, you know, electricity is relatively a new thing here and san francisco is older than electricity, so a lot of larger homes were heated by oil many moons ago. and usually the ones that could afford the tanks underground were generally large homes. so when they take these tanks out, sometimes they filled them up with cement and built the new house on top of them. and i believe they had to then pay a storage tank fee, whether the tank is filled with cement

or whether the tank is empty in perpetuity. how does it work for a commercial property? >> i'm not sure. the site mitigation plan will be tailored to this condition and this site by department of public health. these are two very large tanks. they're not a typical fuel oil tank in a residential property. >> i know, not to interrupt you, but we have development over gas stations on a regular basis. in fact, a lot of the large developments, we now see big homes on every corner because of that. are they going to keep the tanks, fill the tanks, what is the plan? >> we're waiting for the work plan from the consultants, with d.p.h. to review it and make a decision as to what the solution is. but they're not going to approve a building permit until there is -- >> i understand. i'm not trying to put you on the

spot. >> i don't know what the details of it are going to be. but it will be customized to this location, these size tanks, property location to the fact that some of it is under the sidewalk. >> okay, thank you sir. >> thank you. mr. sanchez. >> the guy from planning is still here? that beard has really filled in. >> thank you very much. still working on it. planning department. a couple of the issues, with regard to the ceqa appeal, we do have a comprehensive set of appeal pros processes in san francisco, essentially every determination that is made by anyone can be appealed by anyone, often to this board. we have a list at the end of our agenda for the planning commission that does have a summary of appealable actions and has a whole section on environmental appeals and kind the of time lines for that. so it is clear in the agenda, you know, how and who to make the appeal to.

certainly ceqa appeals are not new and infrequent. we see them at the board of supervisors, so it's a pretty well known process. land banking and the speculated development, the planning department -- commission doesn't have the ability to deny an application because of, you know, based on maybe who an applicant it is it has to be based land use rational. the goal is to certainly develop it. have the housing built. but we do have an expiration clause in the motion, so they have to have their site permit issued within three years of the effective date of the ordinance. so actually this appeal gives them more time, because it stays that time period, but once -- if the board does uphold it, they would have to obtain the permit within three years. there are certain exceptions to that if there is a delay on the part of the city in reviewing the application, they can get an

extension, but typically, you have to get that in three years, go back to the planning commission for the entitlement. the goal is to make sure the mousing is built, not that someone's value of the property has increased. the issue has been raised about public notice. based on our records, the proper notice was performed. there had been a change in the noticing requirements before the project went to the planning commission. so typically, 300 feet owner occupa occupant, but there was amendment and it was reduced to 150 feet b but the project complied with the noticing requirements based on the materials we have. that is it. and i'm available for questions. thank you. >> thank you. >> thank you. commissioners, this matter is submitted. i would like to remind you that the standard of review is error or abuse of discussion and it only takes three votes to

overturn or amend -- >> the planning commission -- >> yes, the planning commission. >> those guys. so i guess i'll start. so i'm definitely the only long-term sunset resident. lived out on 47th, 27th, 8th and now i'm on 15th. been there for a long time. i also had a small business, two, one on 38th and judah and one at 27th and noriega for 16 years. spent a lot of time in the sunset, still spend a lot of time in the sunset. i hear everyone is upset. everyone wants the sunset to stay the way it was when we were kids. and everyone is upset. imagine if you live in the

mission. they're not just building over gas stations, they're tearing down places people live in and relocating these people. this is not just two developments in a whole district. this is like two on every block. it's a huge concentration. and so you know looking at sf -- home sf when the previous mayor, rest in peace, ed lee, he put a task force together with three goals. low-income, really low-income and moderate income. i, of course, jumped at the opportunity to work on that, on that task force. and what i wanted to do was -- it sucks, we make $150,000 and you're barely surviving in the city. he mentioned you have four kids. i have two. can they afford to live to the city? affordability is just a word. it's not a housing shortage, it's affo