>> please be seated. good evening. welcome to the march 11, 2020 meeting of the san francisco board of appeals. president ann lazarus is the presiding officer joined by vice president darryl honda, commissioner rick swig, tanner and santacana. to my left is deputy city attorney who will provide the board with any needed legal advice. at the control is the process clerk and i'm julie rosenberg, the executive director of the board. we'll be joined by representatives from the city

departments that have cases before the board this evening. up front, we have scott sanchez, also representing the planning department and planning commission. as well as andrew perry, senior planner with the office of the zoning administrator. and up front, we have joseph duffy, senior building inspector. and given the coronavirus, we're taking a few special precautions. we would appreciate if you would -- the public would use every other seat. if you're together and you don't mind sitting next to each other, that's fine. additionally, please use hand sanitizer when you come up to the use the equipment. please don't touch it. he can adjust the microphone as well as the laptop and the projector. if you're sneezing or coughing, please leave the room and make sure you sneeze or cough into your arm. if you feel sick, please go home. physically sick, not related to

your case. the guidelines are as follows. the board question that you silence all phones. please carry on conversations in the hallway. the board's presentation are appellants, respondents, each given seven minutes. three minutes or rebuttal. members of the public who are not affiliated with the party have up to three minutes to address the board. four votes are required to grant an appeal. to assist the board, you're asked but not required to submit a speaker card or business card to board staff. speaker cards are available on the left side of the podium. the board reserves the right to not call an item after 10 p.m. if you have questions about a rehearing, the rules or

schedules, speak to staff during the break or visit or call the office. this meeting is broadcast live on sfgovtv, cable channel 78 and will be rebroadcast an channel 26 at 4:00 p.m. the video is available on our website and be down loaded. we will swear in affirm all those. please note that any member of the public may speak without taking an oath. if you intend to testify tonight and wish to have the board give your testimony evidencery rate, please stand and say i do. so whoever is going to testify, if you could please stand. do you swear or affirm that the testimony you are about to gives the truth? thank you. please be seated. commissioners, we have one housekeeping item. for item 7a through 7d, that is

for appeals number 1907, 99, 100 and 101. the 24th street tree removal. the parties have requested continuance until may 6. since it is on the calendar, we need a motion and vote. >> move to continue. >> i'll motion. >> any public comment on the motion? seeing none, we have a motion from vice president honda to move the appeals to may 6. on that motion, santacana aye. lazarus aye. tanner aye. swig aye. so that motion carries. 5-0. and those appeals are moved. item number 1 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 for general public comment? okay. so we will move on to item number 2. commissioner comments and questions. no?

okay. we'll move to item number 3. commissioners before you for adoption are the minutes of the march 4, 2020 board meeting. >> any changes, corrections? >> no. motion to approve. >> okay, we have a motion -- any public comment on the motion? okay, we have a motion from commissioner swig to approve, to adopt the minutes from the march 4th meeting. on that motion, santacana aye. honda aye. tanner aye. that motion carries 5-0. we are now moving onto item number 4a and 4b. these are appeal numbers 20-004 and 20-005. gutterman and derosa versus the building of department inspection. subject property is 333 el camino, appealing issuance to

peter and michelle carter of 4 floor addition. this is permit number 2018-09-271583. we'll hear -- have you decided, the appellants, who is going first? mr. gutterman, please approach. you have seven minutes. let me know if you need help with the equipment. >> i was going to do the slides -- he mentioned he would run the computer for us. >> on the laptop? go ahead and we'll wipe it down after, before the next user, or do you need assistance? >> that would be great because -- >> okay. >> welcome. >> thank you for your time and consideration of this matter. while this issue is very important, nothing is more important than everybody's health in these unsettling times. so with that, may i wish you good health.

hello, my name is scott gutterman, i'm here with my wife, we share property to the south of the 333 el camino delmar. our appeal presents four challenges. neighborhood opposition, a design that manipulator the building code, encroachment on our privacy and a project that threatens to change the character of the neighborhood by breaking new ground and setting precedent. can we go to slide 2. there is strong neighborhood and community opposition to this project. the number of neighbors are very upset about it. written a letter explaining the project should not be allowed due to the height was misrepresented. the current project is not in compliance with the special conditions permit. even after hearing the arguments, they have no action to the letter referring of

opposition, dated august 5, 2019. slide 3. with respect to the opposition, what is relevant here is what i would call the strike zone. these are the houses most impacted by the project and directly to the south of the project on the east side of 27th avenue and the west side of 26th avenue. there is overwhelming opposition from key stakeholders. one of 18 homes to the south of the project has written a letter of support in the strike zone, while 11 of 18, 61% have written letters of opposition. the one letter of support is from a family in the middle of their own construction project. while the developers are aggressive campaigners, writing multiple letters, they were unable to turn the group of opposers to support their project. slide 4. the developer refuses also that they have support from the two neighbors that are most impacted by the project. the adjacent neighbor to the right and to the left.

we would argue those two neighbors are the least impacted and have the most to gain, yet their support is still conditional. both neighbors are told the developer they would not support an addition extending into the yard. this is wrenched in the -- referenced to the response on august 19. slide 5. the building department conflates dormers. the interpretation by the planning department infers that a design is a two-step process. first, a structure could be built with a sloped roof and then a dormer added. what purpose would the sloped roof serve? certainly not functional or habitable space. therefore, the design is left with no choice but to find a way to convert the slope roof into habitable space, hence the dormer. it simply does not work without it. this manipulates the spirit of the code. nowhere is it inferred in the

code that the dormer window can be the basis of creating a sloped roof as it is in this case. slide 6. slide 7. this is the a vault and three, a definition of dormer, specific window is a gabled extension of attic room through a sloping roof to allow for a window opening into the room. it's not itself the room. next slide. we did a wikipedia search and you the topic of dormer windows. we came up with a number of illustrations. all these are relatively small additions to rooftops. nothing that looks like the developer's project. next slide. we did a visual inspection of our neighborhood and we can't find anything that looks like the developer's project. on slide 8 here, these are -- this is the -- these are two

homes on 26th avenue, around the corner from 33 el camino. slide 9, two homes on scenic avenue, right around the corner from the developer. this is what a dormer window looks like. this highlights that the project dormer is not compatible with the surrounding neighborhood. what the projects calls a dormer is not a window by any conventional or practical application. an additional room, own upward sloping roof. this modern design is pushed to the rear of the building to contort every inch of the design to meet effort of compliance. the structure is hung off the back of the building to borrow space in order to lower the midpoint calculation. this avoids a review by the

historic preservation commission. the developer claims that there is significant distance between our home and their home. the distance is 60 feet. in baseball, the pitcher's mound is 60 feet. i can tell you that the pitcher's mound is not a significant distance from home plate. the developer claims there are large trees that will minimize the impact. while we do have a large tree in the backyard, it does not minimize the impact from our home. these are views from our second and third floor. all these are east-facing lines of sight from our home. you can see from the second floor and third floor, we'll have a direct line of sight to the new project. you can see here the designs uncharacteristically tall and out of scale. it towers above the surrounding area. i should note thinks the arc tech's rendering and it looks

out of proportion to the homes to the left and right. furthermore, if you're in our backyard, would you remembyou'r the peak of the roof. [bell ringing] go the last one, if you would. so, the last point here, this is what the developer is proposing. and this is what we're going to end up with in our neighborhood if we allow this project to go through. every roof line is the same height. it's been there for 97 years. this is what we're going to get. if you don't deny this project. thank you. >> thank you. we'll now hear from mr. derosa.

>> good evening, welcome. >> thank you. good evening. my name is frank derosa, my wife and i live at 126 27th avenue around the corner from 333 el camino. we were before you in 2013 when you ordered a special conditions permit to approve the settlement agreement between us, the guttermans, four other neighbors and the current owners, the existing owners, the same owners of 333 to install a roof deck. they now want to install a 4th story penthouse. the owners admit that the height limit in the settlement agreement and the permit is incorrect. and we believe that the height limit in the current permit

drawings is also incorrect. this is the rear facade of the 2013 settlement agreement. and the special conditions permit. note the circled 35-foot, this says 35-foot height limit. you may want to zoom in on that. it shows an arrow and this line here that is the 35 foot height limit at the existing roof of the current building. the language, the arrow and the black line, are the owners' notations. the language doesn't say approximate or assumed as the owners' brief states, it says 35-foot height limit. no ambiguity and clearly no room

for a penthouse above it. the next slide is the owners' 2019 proposed rear facade. it's exhibit a of the brief. this existing roof line, this is their drawing, this existing roof line is in the same location as that 35-foot height line that we just showed you in the first slide. their new height limit that accommodates this new penthouse is six feet higher than the one they showed us -- all of us, in 2013. not six inches, six feet. the owners argue that the height limit was not relevant to the settlement agreement and in any case, it was a private agreement. on the first point, the height limit was absolutely relevant. we argue that the proposed stair penthouse leading to the roof deck was a major structure under

the code. and would be above the height limit. so the location of the height limit mattered. we agree this was a private agreement. we're before you today because they grossly misrepresented the height limit, the central issue in the case. and you relied on that information in ordering the special conditions permit to be issued with the height limit as noted. the owners say they're free to file for future permits. we agree. they have a 30 -- 4300 square foot home with a deep backyard. we didn't say they couldn't do any improvements. but their drawings showed that they couldn't build -- they couldn't build another story above that because the height

limit was -- that was shown was at the existing roof line. it would make no sense for us to spend the time and money to argue over -- to protest a roof deck if we would agree to come back a year or two later -- we would agree they could come back a year or two later and build a full penthouse. that is what the doctrine of reasonable reliance is all about. there was no reason for there to be language to prohibit a fourth story in the agreement because the height limit was at the existing roof line. imagine how people could gain the system if they could present a false set of facts and then come back later and say, just kidding, sorry, these are the true facts. in a quasi judicial proceeding such as the board of appeals, people are accountable for their

actions. please don't allow them to take advantage of their material mistakes. the proposed penthouse is above even the revised height limit. i'm going to ask mr. ron here to explain why the survey points chosen by the owners' architect overstate the height limit by 1.4 feet, which would cause the penthouse drawings to exceed the height limit. >> how much time? >> 1 minute 20 seconds. >> i was asked a surveyor with four years experience here in san francisco, to calculate the natural grade as best i could at

the rear building line. at the center line of the lot. what was given to me was a top graphic survey of the site by mirror consulting incorporateded. what you see underneath, you can't see the grades very well, but that's that survey and what our office did, we put in the boundary, we put a line down the center line. we showed the back of the building and the front of the building. and what we did was a calculation. the only way that i -- know how to come up with natural ground, doing this many times in my 40 years, in a lot like this that has different terraces is to go to the back of the line, the center of the lot and come up with grade. 127.0 based on the survey. to go to the very front of the lot, back of the sidewalk, right

at the property line at the back of the walk and i did. 117.6 is the existing grade. [bell ringing] >> you'll have more time in rebuttal. i'm sorry, your time is up. that was a minute and 20 seconds. >> i have a question for mr. derosa. so your fellow appellant did not mention the settlement agreement. you are not longer asserting that the settlement agreement by itself just up holding this -- justifies upholding this appeal. your argument now is that the plans that were submitted in connection with the agreement to this body were a misrepresentation of fact or now the new ones are a misrepresentation of fact? you're not arguing that the agreement itself is what we should base our decision on, is that correct? >> i think so. i'm not quite sure of the

distinction. we had the settlement agreement. we entered into the settlement agreement knowing that the height -- knowing that the height limit was at the existing roof line. so we reasonably -- >> no, i heard the presentation. what i want to understand, are you asking us to enforce the settlement agreement or not? i'm sorry, the question is for mr. derosa. you are, okay. that's all i needed to know. >> thank you. we'll hear from the permit holders. >> i didn't see that.

>> we just found out. >> sorry i did not make this disclosure. i am a party -- partner a project that has hired this law firm. their appearance before this body will not have an affect on my decision this evening. considering that the name is in the room this evening. >> they didn't tell us in advance just so you know. >> i just saw tom sitting there and realized that. >> thank you.

you're responding to two appeals. you have 14 minutes. >> madame director, they haven't fixed the air-conditioning yet? ready? >> yes. good evening board members. my name is michelle carter and my husband peter and i are the owner of 333 el camino, where we've lived six years. if anyone asked us in 2013 if we would renovate our house again, we would say no way. we now have two little girls and hope to have another child. we have a full and busy

household with every bedroom occupied and my husband and i work from home. we have three sets of parents between us, they love visiting for extended periods of time. we want to have room for them to stay with us. this 624-square foot addition accommodates our growing family needs providing additional bedroom, bathroom and home office. in the past 18 months we've gone to great lengths to communicate with our neighbors. we spoke to all neighbors to inform them of our plan, including appellant gutterman. we also delivered many letters inviting communication conducted at least five meetings and attended another meeting with derosa and architect at the planning department. because we've invited communication and because our project is sensitively designed,

we have the support of 20 neighbors as shown on this map, including several across the street. and the neighbors immediately to the east arched west. as -- and west. as you can see, there is not one neighbor opposing the project on our street. the two next door neighbors are directly affected and they're both supporting the project. please note there are three parties who initially opposed our project during the d.r. process. they were the only three parties willing to talk to us after the hearing and all three are no longer opposing the project. please note they still cite them as part of the opposition. after learning more, peter temple and janet have said they're neutral on the project and the planning association of the richmond have told us they no longer are actively opposing the project. the current project design preserves our small rear yard which is one of the main reasons

we fell in love with our house. our children and friend, including many neighborhood children play in the backyard regularly. although we hope our 20 letters of support so how extensive our outreach has been, we understand this is not a popularity contest and we know although our reasons choosing to renovate are personal and matter deeply to us, they might not matter to us. what is most important here is that our project is 100% code compliant and consistent with the neighborhood character and residential guidelines. we wish there was a way to accomplish the project without impacting anyone. by choosing to live in close proximity to others, we all may see modifications people make to each other's homes. families should be able to modify their home as long as they're code client and ours is. we request that the board deny the appeals and up hold the

planning commission's decision as proposed without modification. thank you. >> good evening, members of the board. tom, attorney for the carters. focusing on the 2013 settlement agreement and its inapplicability to the current project. i want to talk about the drawings as well. the 2013 roof deck settlement was a private agreement entered into by the carters, appellants and two other neighbors. it addressed using a skylight for roof access and keeping the deck railings within 18 inches of the top of the existing top. it did not mention restricting future grants. the carters fully complied with the agreement when they built the roof deck. the settlement had architect drawings attached.

we've included that in the brief, as did the special conditions permit approved at that time that confirmed the work that was the subject of the agreement. the appellants now claim that unsurveyed height approximations on those drawings did something more than far more describe the work to be done at the time. he claim the drawings gave assurance that nothing higher than the roof deck could ever be built and now the carter family should not be able to build anything on the roof. the drawing by law and just as a matter of commonsense cannot be relied upon for that purpose. the specifics of the height limit were not relevant to the 2013 drawings because all elements on the roof deck and access were exempt from the height limit. therefore, no survey was included or required, nor did any of the parties involved ever request one. heights were shown for reference only repeated ily in the --

repeatedly in the drawings there were drawings with approximate. the red line and arrow on the brief was added by the appellants for purposes of this appeal and attempting to illustrate their claims. this red line was not included in the original settlement drawings. again, the agreement was a private one drafted by mr. derosa's attorney. it was not recorded nor made a condition of any city approvals. this agreement is no different than other such private settlement agreements that this board has determined are not subject to the board's jurisdiction or relevant to its review. as proof it was understood by both sides that an application for a future project such as this was allowed, i refer to you an e-mail from the derosa to the carters on august 22, 2013 while the agreement as finalized. mr. derosa writes -- can you

focus in? i think all of us intend this agreement to apply to this permit proceeding. if five years from now you're a glutton for punishment and want to -- you are not restrained by this agreement and what you proposed. >> hello, i'm the project architect. we designed a project that is sensitive to the neighbors and fits into the neighborhood. it meets with planning code and conforms to the residential guideline. this modest 624-square foot addition is set back 27 feet from the front so it is not visible from across the street and only minimally visible from other points. the design is very low in profile with modest interior

ceiling height close to minimum and a roof that slopes to the rear. the green line shows the existing roof line with the proposed addition above it. the addition is appropriate for the neighborhood. as shown here in yellow, over 30% of the homes within half block of the project site have four stories, or are over 35 feet in height. those over 35 feet are also outlined in blue. one of these is appellant gutterman's home. the next slide shows photos of the block and surrounding buildings from the roof of the carter's house. the neighborhood includes four story homes, penthouses, tall sloped roofs and apartment buildings that creates a multilayered surrounding context. many roofs, including that of derosa, have primary slopes and dormers like our proposed design. as you can see in the image, the closest point to the appellants's homes are located

60 feet as was previously noted and 100 feet from the carters home. the light, air and privacy will be protected. in response to appellant gutterman's claims about privacy, this carriage house door, the only opening facing the carter home is screened from view by the large tree, shrubs and fence. the south-facing windows of the addition were designed as a clearer story starting 6 feet 4 inches above the finished floor to provide light into the interior of the proposed addition. occupants of the additions will not be able to see the appellants' homes through the windows. the gutterman will perhaps have more privacy with this addition than the open roof deck. the windows of the home are obstructed by a wall of thick trees and shrubs. the view toward the carter home

is obstructed, although it was trimmed today. any potential impacts on reduced due to the difference in elevation between the properties. at the rear, the carters' bottom floor is nearly halfway underground and the back of the home is 10 feet below the elevation of the appellants' homes. because it's situated to the north side, it will not shade the mid block open space. it will not cast a shadow on either appellant. we worked closely with planning staff to confirm that the project is code compliant. the opposition claims our use of a dormer is incorrect. the brief states that the purposes of a dormer as described in the exhibit, according to bulletin number 3 is to increase the occupible floor area. that is exactly the way we have used this code. the appellant is mistaken in thinking that dormers are only to be used in existing spaces.

we have several precedents where they have been been included with new forms. the dormer is less than 20% of the roof area. that particular proportion limits the amount of dormer so the dormer can't be the entire roof. we worked carefully with the planning staff to make sure we calculate the height limit. this is validated on specific queries, including a meeting with scott sanchez and at the carters' home earlier today with scott. appellant derosa cites claims from various consultants with regards to which survey points to use. these are inconsistent and contradictory with one another and inaccurate. ben ron stated a method where he uses a center line of the property. we know that to be inaccurate. the appellants's claim is based on the high level point being in the middle of the yard. the code dictates we use grade

points along the side property lines. at the west property line, this photo here on the screen was taken in 2012 before the carters made landscape improvements and before they excavated the lawn area. the end of the landscape area is level with the brick patio, this represents the prior and current grade. keep in mind as we look at the next image, this photo was taken recently from a slightly different angle. the same landscape area along the fence in the previous photo exists. although the grass and the patio is lower, the original grade still runs along the west property line. begins in the landscape area and continues behind a retaining wall behind the stairs all the way to the rear facade of the house. we know this level grade continues along the west property line because of the presence of the retaining walls. here's a photo from the carters' renovation in 2013. it's taken from standing inside the house looking outtoward the yard.

the top staircase is not yet built, but you can see the stairwell, the two retaining walls. at the time of the renovation, the walls were created to hold back the original soil level we saw in the 2012 photo. yesterday to make the point irrefutable we cut a hole in the siding as depicted in the photo. at the eastern property line, the grade is also level. the point taken in the easterly landscape is proper to generate the basis for the height limit on that side. the average of those two points is then used to figure out what the height limit genesis point should be. in summary, the points we used to calculate the height is appropriate and it does not exceed the allowable building envelope. >> vice president honda: thank you. >> thank you. does that conclude the presentation? you had 40 seconds, that's fine. we'll move on to the planning department.

>> you have 14 minutes. >> scott sanchez. the property at 333 el camino is within rh-1 zoning district and the 40-x, that means that the height limit is 40 feet, but under planning code 261, depending on the lot configuration it's reduced down to 35 feet. 35 feet is an odd number. it's halfway between 30 and 40. usually you have 10 feet per story, so it's something that you can, it's possible to have a four story building legally in an rh-1 district meeting the 35-feet height limit, but it's not something we see often. it's something that can be done more readily on an upsloping lot, because under the planning code, 260, height follows grade

on upsloping lot. so it may be 35 feet at the front, you're going to go at a straight line. you'll have more than 30 feet above your curb level when you get to whatever the rear of the building. so it is something that can be done. it's not common. and often requires projects to be contorted. and to the appellants's art they're manipulating the design of the building, i would agree with that. it's a fair observation. this is probably not the room form they preferred, but they're doing it in a manner to comply with the planning code. and we have found repeatedly that the project does comply with the planning code. the project was submitted in 2018, underwent neighborhood notification and between april and may of 2019, there was discretionary review filed and hearing held on may 5, 2019. many of these issues were raised at the hearing and at that

hearing the planning commission unanimously denied the d.r. request and approved the project as proposed. a couple of issues that have been raised here, one in regard to the settlement agreement. maybe i'll address that first. and this board is no stranger to settlement agreements as arguments for precedent. i know certainly the planning commission had an item, it was appealed to this board -- >> in the same neighborhood. >> where the planning commission had basically the only finding for taking d.r. and denying the project as proposed was they relied on a previous settlement agreement. i think this board rightly found they didn't make independent findings with code compliance. we don't enforce the private agreements. the party is not part of those and does not enforce it. there may be other land use reasons for making a decision,

but enforcing a private agreement cannot be the sole reason for making a land use decision. it's been argued that somehow that decision, which did inaccurately show the height limit, that should carry on. we have to look at every permit and ply the planning -- and apply the planning code to that permit. as stated, the original permit from 2013 that proposed a roof deck which is allowable above the height limit, 10-15 feet for penthouses, railings up to four feet above the height limit. you can have a roof deck even higher as long as the railings are open, so the height wasn't really a question as part of that proposal, but that permit which did go through 311 notification, i believe and did not have any d.r.s, but it was appealed to this board and parties came to an agreement

removing that roof deck and the board adopted that. i didn't see anything in the board's decision at that time that would prohibit them from re-filing in the future. there were no specific findings. the board is often accommodating to the parties that appear before it and if an agreement is reached, the board will adopt those revised plans. we look at that on a case-by-case basis. was the board taking the action to facilitate a settlement? so in this case, they had the ability to go back, go to the planning commission, now it's back to the board of appeals. we'll hear what the board, what you think about the permit in maybe half an hour i guess. after i go through the rest of the comments. >> vice president honda: you only have nine and a half minutes left. >> there is rebuttal and public comment. a comment was made about the historic preservation commission. this is not within article 10 or 11 district. there was nothing done here to

avoid review. they don't have jurisdiction on this as i understand from staff, because the building and how it's rated. so there was no process that was avoided by the application. we have found it to be repeatedly compliant with the residential guidelines. it's set back substantially from the front property line. to comply with the code is minimal as can be to comply with the code. you see it having minimal impact on the neighbors. it seems to be related to the view. i mean, this is the property that has appeal this would be the view corridor. i don't know if there is existing view to the bridge, but it's a view corridor to the presidio, but again, views are not protected. in regards to issues raised with the height calculations, under planning code 260, i wish it was as simple as mr. ron alluded.

that would be much easier on all of us, but it's not. there is a couple of things that come into play. first, we don't have an absolute height limit. some jurisdictions no portion of a structure can go over a certain height. that is not what it says in our code. if you have sculpted roof forms it's the average height. if you have a peak roof. any number of roof forms, we don't measure to the top, we measure to the midpoint. so that is why sometimes we will see more creative roof forms here, vault, or butterfly, whatever, trying to maximize as much as they can but have something that complies with the code still. so what they are doing and what they're proposing with this shed roof essentially and taking it to the midpoint, that is correct under the planning code. second, in regards to the concerns raised by dormer, the planning code doesn't define

dormer. planning code 260 is where most of the regulations to dormers appear when you do have dormers and they are above the height limit, they are limited to 20% of the roof area. what they are proposing here as the dormer, the rearmost portion, is actually underneath the height limit, so it's not subject to the 20% limitation, because it's under that plane that is created establishing the height limit. so they're allowed to do what they have proposed. we have reviewed this multiple times and extensively with the zoning administrator and confirmed this is correct. with regard to the bulletin number 3, the purpose of the document is to define limited projects which are approvable without notice. that is what all the standards that are contained therein are the purpose is to say, if you meet those standards you don't need notice. if you don't meet the standards, you may still be code compliant, but you need notice. this project has gone through

notification. this is a vertical addition and this is a new floor. no one is trying to say that is not the case. it can be challenging to get that within a 35-foot district, but what they have here does comply. in the height, we don't take the point at the rear property line, at the elevation of the rear property line and the front property line and average the two. that would be too simple and that's not what the code has us do. they have us take it every single cross section. we're supposed to perfectly follow the topography. but you know, it's far from perfect. people have drop points where they can, but it's definitely not taken from the front to the rear property line. would be great if that was, make life easier. hasn't been that way since we've had height limits. so we have to do our best to find out where the natural grade

is. the corrode, where you -- code, where you take grade from, it's the natural or assumed grade of the property. imagine, you have someone doing a development and as part of that they're doing a patio, maybe excavating out in the back to have a patio. when you come back for the next project, you don't take height where the new excavated area is. you take where it used to be and this makes it all more challenging to deal with. we're trying in this case to have a reasonable application interpretation of the planning code. and i've met with mr. derosa. i've met with the permit holders. i did a site visit this morning. and from all the information that we've gathered, what they are doing here is a reasonable application of the code. and i did observe that they drilled a hole in the property,

so they're serious about demonstrating. this they haven't held -- they haven't held anything back. we can see the top of the retaining wall at that point and that's actually taller than the point they used on the plan. so i mean, we're trying tour best, everyone is trying their best. they didn't even go for the best-case scenario. they could have gone for a higher elevation site. i reviewed it again with the zoning administrator that they could use the higher point there. on the east side property line, it's hard because there has been work, i think, that the patio was excavated out. it doesn't show clearly on that previous permit, but the scope of work wouldn't have necessarily required that. they wouldn't necessarily require a permit for the excavation that occurred. so i tried my best to make an observation on the adjacent property and there is argument that the native grade may be

higher than what they're showing here as well, because there is a small wall retaining wall on the adjacent property. it does drop off the other side to stairs. but we're trying our best with the points here. if anything, it's coming down to inches. and you know, i think that what they're doing is reasonable. and the board may have a differing opinion. we certainly tried our best to come to a conclusion here. and from what we've seen, we think that what they have proposed and what has been approved by the planning commission is reasonable and is code compliant. so with that, i will yield the rest of my time -- >> vice president honda: thanks. i have a question. >> you also used 14 minutes, but it's okay. so i read in the brief that they checked and again having that line of 35 or 40 feet is sometimes difficult. i saw in the brief that the

alexander kirby is the planner in charge of that, right? >> i think she had handled it one point in time, but when it went through the steering process, it was reassigned -- i think she was involved in the early on in a project review. >> vice president honda: the only question i have -- i have two. how much higher could they have gone in bulk and height? >> they're maxed out. from what they're showing on the plans right now, this is basically the biggest they could do in terms of the height. in terms of the rear yard, they have a 30% rear yard requirement. and i don't have all the dimensions in front of me, but they could certainly go further back in a horizontal addition quite a bit compared to what their lot coverage is now. >> that's a pretty unique use of a dormer. does it expand the whole width it looks like by the plan? >> yeah, but -- yeah.

they are doing everything -- you can call manipulating, creative. -- >> you're complying with the code, but is the first time i've seen this application come before me. i thought that was unique. so there is no distance or width span that is set in regards to adding a dormer. >> no, because this all below the height limit, none of the restrictions would apply. the code doesn't define dormer. >> kudos. >> yeah. we did have discussions about this. because some of the limitations in the code, or where the code is, this is allowable. >> vice president honda: thank you. >> so just to confirm, you're comfortable with the height correct? yes. >> commissioner swig: there are two issues, change the height

and changing the neighborhood and accelerating a trend that would fulfill the fears of the appellants. can you address the character of changing the character of the neighborhood? do you feel there is anything there? >> certainly that would be part and parcel that the planning commission considered and how we apply the residential guidelines. and the planning commission found it to be compliant with the guidelines. it's not an element that is out of place in the neighborhood. the setback from the front property line. i would say it's not necessarily designed to be as minimal as possible, i'm sure it's one of their consideration, but to comply with the code it has to be in the shape that it is, which i think is minimal. we don't have an issue with it along those lines. certainly, the board may find otherwise, but it's the department's position this complies with the guidelines.

>> commissioner swig: thank you. >> when you say that the dormer is completely -- >> microphone. >> when you say the dormer is completely under the height limit, is that taking the midpoint of the dormer slope or the peak? >> that's the absolute. so the dormer you'll see slopes and it's sloping like that because that is where the height limit is, so it is -- the dormer goes right up to the height limit. >> thank you. >> i have a question. you described thoroughly the ways the height is measured. can you talk about the staff review process? for the appellants, which i understand their position, hey, these other drawings had dimensions, when you add it up, looks like there is a little bit of room, not a lot. some of the drawings from 2013 don't have dimensions in term of height. was the height at that time relevant to the roof deck, or

it's more relative to the top of the roof versus the overall height of the building itself? >> personally, i think plans should be accurate regardless of the scope. it should have been accurate. it does not -- now we know it was not accurate. but in terms of how that inaccuracy impacted the project, it was still code compliant because what they had there -- i mean they had a lower height limit. if anything it was more restrictive than the actual -- it was an error not in favor of the property owner. but it was the roof deck and the penthouse would have been code compliant because those are allowed above the height limit. >> commissioner tanner: because this permit is subject to review of height limits, that's one of the major questions being asked, how does staff review and verify

the height of the buildings? is there software? do you believe that what the permit-holder is applying for is accurate? honor system? can you describe that. >> so these plans, as every plan we deal with, they're submitted by a licensed professional. so we rely on a licensed professional to submit accurate materials and to have the ultimate construction be accurate. i mean, it will follow those plans. and that will be enforced by the department building inspection to ensure there is plan compliance. in this case, we had additional information in the form of the survey which was not done. it would have been great if it was done back in 2013. i think a lot more questions would be answered more clearly at this point. but we're basing it on this information. it's standard when it comes down -- sometimes you know, it's so clear it's not up to the height limit, a survey may not be necessary. but in this case, they are going right up to the height limit to

the survey is necessary to determine the accuracy. and i appreciate the appellants have very thoroughly reviewed this and have argued these issues and we tried to be responsive to that. like i met with mr. derosa and met with the zoning administrator, subsequent to all these meetings and site visits and we still believe it's accurate. >> commissioner tanner: the plans would be the information used in the staff review? >> yeah, in short. >> thank you. we'll now hear from the department of building inspection. >> good evening, commissioners. the permit, it's the application, it's a site permit. vertical addition, fourth floor, bedroom, office space. the proposal, construct a one story addition. september 2018, issued on the

3rd of january, 2020. appealed on the 9th of january. and ultimately suspended. so about 15 months for the approval. it went through building plan checks so far and d.p.w., puc for some fees and we obviously will be seeing the i'm available for questions, but i didn't see anything else there for d.b.i. issues. >> any public comment on the item? public comment? okay. if you can come forward -- this is for 333 el camino? >> yes. >> vice president honda: is there anyone else speaking for public comment? >> you could move forward that

would be great or line up against the wall. you can sit in the seat right there. >> my name is chad. my wife and two kids live at 215 el camino. we're here in full support of peter and michele for two main reasons. one is peter and michele are exemplary neighbors. they open their home every year to the entire neighborhood. not just select neighbors, but the entire neighborhood fort annual christmas party. they organize christmas caroling, they do halloween parties. they're a real positive impact on the community and the neighborhood. there was a lot of talk about the look and the feel and the physical changes that could possibly come from the project, but i want to talk a little bit about the emotional changes. if they left the neighborhood, it would be a detriment to all of us. they're the nicest neighbors. completely welcoming. i don't know anyone who would

open their home to the entire neighborhood the way they've done. it is a huge difference. my wife and children are constantly over at their house. i've seen the impact they've had. i don't think you can find better neighbors. the second reason, again, having two kid in the neighborhood, richmond is one of the few neighborhoods we have left in san francisco that is affordable and a family neighborhood. we're losing them quickly. for us to have areas where we can grow and have a large family is dwindling. if you don't allow this to happen and go forward, frankly, we may not have places we can go in the future. my family may have to move out of san francisco as well. i own a business here in san francisco. it's here in the city. union square. i have 27 employees. so if i have to move out of the city, that business comes with me. spend a lot of time in this building, city tax collector on the first floor, the franchise

tax board which you may be familiar with, i've learned a lot over the last four years, i contribute a lot. i like the feel. i would like to see the city help families stay in the city that want to be. >> vice president honda: thank you. next speaker, please. hi, good evening. >> i love the energy. >> great. i have my card. i know it may need to be sanitized. there you are. i live nearby at 81 25th avenue. i'm in full support of the carters. michele and peter, they open their home for community events. they have helped organize a neighborhood block party. they welcomed new neighbors to the neighborhood. the neighborhood many times now. but that is because they really are a part of it and they're very thoughtful and conscientious neighbors.

we also in our home have a partial fourth floor where we have a home office and the addin is minimally vible from the street. so i find that it's still in the spirit of the neighborhood that they worked really hard to make sure that it is minimally impactful to neighbors. and they want to keep their family in san francisco. they care about san francisco. and i know -- we want to keep families in san francisco. so i feel like it's in the spirit of the neighborhood. they're wonderful neighbors. and it's a privilege to come and speak in support tonight. thank you so much. >> vice president honda: thank you. next speaker, please. >> good evening. tough act to follow. my name is justinian and i'm standing in for one of the carters' neighbors to give her

presentation. i'm going to read from a letter she presented. dear, san francisco board of appeals, i live two doors down from the carters with my husband and two young children. i was hoping to speak at the hearing in support of the project, but will be out of town. i'm a native san franciscan. i grew up in the richmond district not far from where i live. my brother and i were friends with all the kids on the block. we used to ride our bikes where my kids play with the carter children. i loved growing up in san francisco. with the other families in our neighborhood. and i want my kids do the same. the carters and one other family have moved to our block since we moved to our home in 2009, for which we're thankful. our kids are playing out in front of the house with neighborhood kids just like i did when i was young. we support homeowners to accommodate their families, this

strengthens the character and diversity of the neighborhood while we benefit. our neighborhood is made up for multifamily buildings and single-family housing. this is well within the range of what we see around us. we want more families to stay in san francisco. we want more kids playing in our neighborhood and local park. i can also say personally, as a good froevend the carters -- friend of the carters, i have a young family and won't business and seeing neighborhood conversations like this inspire me to stay here and keep those things here. i appreciate your time and thank you very much. >> vice president honda: thank you. next speaker, please. good evening, welcome. >> hi, thank you. i'd like to just plus one that letter, because it was very strong. i don't have a letter to read. my name is loretta. i'm a homeowner at 136 27th avenue. we are just around the corner

from the carters. i've known the carters now for about three years. our children go to school together. they're wonderful parents within our school community, but more importantly, my husband and i have been in san francisco many years. both of us were born in san francisco and we plan to raise our families here in san francisco. we struggled with finding a neighborhood that we wanted to move into. and wanted to purchase a home, but spent many years looking. we currently reside in the presidio. in about 2017, we finally found a home on 27th avenue and purchased that home. we're also under construction right now remodelling our home so we will be moving in closer to the end of the year. we're in absolute support of this request to remodel and first and foremost for me, i'm quite black and white. my point of view is very much,

is it or is it not within code? and when michele and peter presented their project is within code, i felt good supporting the details and supporting this court hearing. the other piece i wanted to highlight is that within our own home, we do also have a partial fourth floor in our home which is again around the corner. so it doesn't feel like what they are requesting is out of character for the neighborhood. so, we are also in support of this project. thank you. >> vice president honda: thank you. >> any other public comment on this item? okay, we'll move on to rebuttal. we'll hear from mr. gutterman first. you have three minutes. >> let's see, how do i go back to where we were?

okay. let's see. we like it. we have two of them, of our own. we like good neighbors. we consider ourselves to be good neighbors. i don't think this discussion is really about that. the topic of dormer keeps coming up again and again in the code. it's very specific. it's a dormer window. it's not a dormer. it must be a window. i also think that when you get up here and present something, you should be reliant on the facts. there are no trees that shield this project from our living area. there just aren't.

it's not a defensible comment. the other thing is this design walks a razor's edge. it sits on the back of the building. you can see the project hangs off the building. they can't get the slope roof calculation to work unless they borrow a couple of feet off the back of the building. so the concept they're being thoughtful about 27-foot setback is disingenuous. the only way the project works is to start the building and push it off the edge. i don't think it's not true this is not subject to historical commission. two further points. this roof has been here for 97 years. i'm sure somebody has wanted to

put a building on top and it hasn't happened. and this is what we're going to get. we're going to have a bunch of families who live in four story buildings. and you can walk around our neighborhood until you're blue in the face, you will not find anything like this design. not even close. thank you for your time. >> vice president honda: thank you. >> thank you. mr. derosa? >> can i get his extra time? >> vice president honda: no. thank you. >> thank you. commissioner sani commissioner, what we're asking the board is hold the owners to the specifications special permit we relied on. this is different than 610 el camino. 610, the facts didn't change. the height limit didn't change. the setbacks didn't change. nothing changed from 2011 to

2019. here the central issue -- the central fact of the height limit changed not by a small amount, but six feet. and that is relevant despite what the attorney says, that is relevant. this is an e-mail that i sent to michele and peter carter -- >> overhead, please. >> -- back in 2013 about our argument. i said i'm sure you feel confident in your case, but i would caution you to have mark read the general code and interpretations. we did not file the appeal simply to be obstructionists. a penthouse stairwell is a major structure. our argument was it did need to comply with the height -- with the height limit. and we may have won that argument, we may have lost that

argument, but that was our argument. and it must have had some strength because the carters settled, right? so that height limit was relevant and we relied on it. regarding my e-mail about building -- agreeing to build more. i said that because they showed us -- they showed us the height limit -- and by the way, this is their drawing, their dotted line, there is no red line here. this is their drawing, their language, 35-foot height limit, it doesn't say assumed, it says 35-foot height limit. that's what they showed us. i said, whatever you want to build, go ahead. knowing they couldn't go up. again, why would we' agree to a roof deck if we thought they

could come back later and build an entire penthouse? finally -- [bell ringing] >> 30 seconds. >> okay, i want to correct a couple of misstatements. all of the neighbors still oppose this project. and most -- i think all of the neighbors that signed on still oppose the project. as does par architect representing parr met with the owners. he sent them an e-mail saying -- they say they -- he no longer opposes. the project. [bell ringing] he said that the letter in opposition still stands. >> thank you. >> commissioner tanner: i have a question. i understand from the drawings that you guys provided from 2013 that you assumed the height limit and represented the height limit is 35 feet. you do the math, you argue about math. if in fact the building was not at 35 feet and this addition

brings it to 35 feet, what is the opposition? the limit itself is met by the addition. what is the issue with the 35 feet? >> they showed us a 35-foot height limit in 2013 that was 6 feet lower than what they're showing now. >> commissioner tanner: i understand the discrepancy, but my point is 35 feet is 35 feet. we can argue how to measure it, where to draw the lines. i can understand different ways of looking at the same thing, but if they're meeting 35 feet, which is what they're meeting with this, i don't see what the issue is? is your argument that the height limit should be lower? >> our argument is they should live with the height limit that they showed us in 2013 which was

six feet lower, which would not have allowed for a penthouse and, therefore, was not expressly prohibited in the settlement agreement because it was impossible to build one. >> commissioner tanner: thank you. >> we'll now hear from the permit holders. you have six minutes. i'd like to talk about how the project is designed to fit within the residential guidelines and why the residential design team approved the project. here is a succinct conclusion written by the design team themselves. they say in light of the d.r. request this project was re-reviewed by the residential design advisory team and confirmed that it complies with

the guidelines. specifically, they say, since the proposed addition is set back 27 feet from the wall and does not extend past the existing rear wall, the addition complies with the guidelines related to scale at the street and scale at the rear yard. two, they say, the impacts on light from this modest enlargement on either mid block open space or street from there addition were not deemed to be exceptional or extraordinary since the addition is on a existing footprint of the building. i just want to point out, the design does not hang off the rear of the building. it sits on the existing footprint of the building itself. the project is designed to comply with the code requirements. it affects neighbors in a minimal way. it enables the carter family to grow without moving. the appellants claim they don't

want the addition because it sets a height precedent for the neighborhood. we've demonstrated these claims are not true. thank you. >> thank you. >> just real quick, mr. derosa and guttermans are entitled to their opinion of what they thought they were agreeing to, or how they interpreted the agreement at the time. the carters have their own interpretation. they had their own reasonable reliance. they have other e-mails where mr. derosa said you could seek a fourth story addition, but the point is, under the law, that is why we have a written agreement and this goes to why there is a written agreement, so that later in time you're not arguing over what people thought when they entered the agreement. so they have a writing. it didn't prevent a future project, nor did the special conditions permit.

so thank you. >> thank you. we'll now hear from the planning department. >> thank you. scott sanchez. planning department. i'll touch on three points. first, commissioner honda had asked how much was left in the rear yard? so now it's a 30% requirement, it used to be 25%. they have about 51 feet from the plans from the main building to the rear property line. 100 foot lot, so it's about 20 feet they could extend to the rear and still be code compliant. of course, we'd have a say about that with residential guidelines, but both of the adjacent building extend further out, so certainly there is room that would be design-compliant for a horizontal addition. >> vice president honda: and vertical? >> and vertical up to the

height. the second issue, one of the appellants had stated that they believed they had gone through review by the preservation commission. i looked up the permit, they did not. it was over-the-counter permit. it was about two month long process. it looks like it was approved by planning in and out the same day, although there may have been back and forth about the materials, but there was no review by the historic preservation. i know people can get confused by the different departments, but it did not go through a hearing in front of the historic preservation commission which is a separate board like the planning commission. i wanted to clarify that point. lastly, the issue here, in 2013, the plans where they had shown a 35-foot height limit, that was inaccurate. i think what happened with those plans, they didn't comply with the code because they didn't acknowledge or note that under the planning code you can follow grade on upsloping lot.

so what they took the 35 feet they show on the plans appears to be 35 feet above their zero dataum which is the curve at the top of the property. so they're calling this red line 35 feet. it would be hard to see on here. but the zero datum is way down here, it's at the front of the curb line. it's where height is measured from and the first 10 feet from the buildable envelope is taken from that point, but beyond that, it follows planning code 260. >> so what you're saying is be careful what you put in writing? >> always. >> even though they thought they were right they were misrepresenting the truth their

detriment? >> yes. and that is all i have. >> commissioner tanner: i have a question. just to clarify this special conditions permit. >> was amicable to that -- applicable to that project and might not -- >> the board may find today it was really your intent to forever limit the building to that height, but that wasn't your decision at that time. what your decision was to facilitate an agreement by the parties, which we encourage you to do. you like to do rather than having them start over again with new permits, but that doesn't always forever restrict the property. they have the ability to come back and they've done so. now you have the ability to make a final decision on it again. >> thank you. >> thank you. anything further from d.b.i.? commissioners, this matter is

submitted. >> i think the -- we always go -- we always liked, at least i always liked to ask the planning commission, does this fit into legal guidelines and i heard with surety that it fits within legal guidelines. i am always concerned -- and i've made decisions and made recommendations in the past, does it -- is it detrimental to the character of the neighborhood? that's why i was very clear to ask planning -- what you -- you're not planning director, you're just imitation. >> deputy d.a. >> does it change the character of the neighborhood? in his opinion, it doesn't. with those two key points which is legal and it fits in the

height limit and isn't detrimental to the character of the neighborhood, and i grew up in the neighborhood about two-and-a-half blocks away, so i'm still near and dear to me. i have no problem with this project. so -- >> vice president honda: so for me, commissioners, really what is before us is a code compliant project. and to me, one, it's nice to retain families in the neighborhood as too with commissioner swig, i grew up on the 100 block of 24th avenue, so i loved playing there and my son. were they creative in getting that additional space? they were. and it's not manipulating. you're either code-compliant or you're not. in this particular case, they are. and i'm old. i heard this in 2013 when it came before us. and here we are in 2019.

right? >> 20. >> 20, oh, yeah. i'm really old [laughter]. not to take away from the appellants. i understand that construction is intrusive at best. to be honest, but really what is before us is this code-compliant and secondly this board generally, as we heard earlier, we're not here to enforce private agreements. we will look at them and consider what the merit and what they're based on, but that's not what is before this body this evening. >> any other comments? a motion? >> vice president honda: i'll make a motion to deny the appeal that it was properly issued. on the grounds it was properly issued. >> we have a motion from vice president honda to deny the appeals on the basis that the permit was properly issued. santacana aye. lazarus aye. tanner aye.

swig aye. that motion carries 5-0. the appeals are denied. thank you. >> we are now moving onto item number 5. we did have an overflow room. if you're in the overflow room, you can head over. i'm not sure if anyone is in there. that was room 400. so item number 5 is appeal number 19-123. malcolm yeung versus zoning administrator. subject property, 838 grant avenue. appealing the issuance to mall couple yeung of the letter of determination. determination that the nonconforming restaurant use on the 5th and 6th floors has not been discontinued or abandoned pursuant to planning code section 183a. the determination is based on the fact that a building permit was submitted within the three-year discontinuance period to renovate the restaurant space.

additional permits were issued for additional work. all of these permits are still active. this is record number 2019-014303. note, the board voted 4-0-1, to continue the matter to february 19, 2020. with further direction to d.b.i. and the planning department that no permits associated, the permit can be delayed because of the continuance. the february 19 was cancelled due to lack of quorum. we have vice president -- >> vice president honda: i wish to disclose again that i'm a partner a project that has hired the law firm. their appearance before this body will not have an affect on my decision. >> and president lazarus, did you have the opportunity to review the materials for the

hearing that took place on january 29? >> i did and i would like to ask we take a very short break. >> okay, we're going to >> president lazarus: welcome back to the march 11, 2020 meeting. >> we're on item number 5. this is appeal number 19 -- 123. mr. yeung. >> counsel for the appellant. i'm focused on the letter of determination. this board will then listen to the appellant directly, malcolm yeung, to talk about the public policy implications as well.

this board should overturn the letter of determine nation for the following three reasons. one, the letter does not address the abandonment on the fifth floor as there has been no use of any kind. the letter misrepresents the permits on which it relies. all were for the sixth floor. not the fifth and sixth together. even under the 1967 zoning administrator, sponsor failed to show diligent completion of work. the board of appeals should overturn the l.o.d. and send us back to planning. for a basic recitation of the facts. from 1966 until 2014, the fifth and sixth floor of the building were used by the restaurant. the chinatown retail district was created. prohibiting restaurant use above the second floor.

the restaurant use existed lawfully as of the effective date in until they closed their business. the fifth floor use had been abandoned since then. the c.b.r. prohibits use above the fifth floor. but section 183 of the planning code is clear. whenever a nonconforming use has been discontinued for three years, such use shall not be reestablished. emperors of china has not seen any use of that kind, so we should go to a conditional use hearing. the l.o.d. cites three permits to show the use has not been abandoned. all are representative of fork on the fifth and sixth floor,

but this is not true. the language of the permit references the sixth floor and only the sixth. it does not reference the fifth at all. the responding -- opposing counsel's own brief admits that as well. it just begs the question, the sixth floor, which is supposed to be a caliber restaurant, why wouldn't major rehab on the fifth floor occur to conform to the work being done on the sixth floor? there is no intent that can be read into this. in the opposing counsel brief there is only images of the sixth floor, no images of the fifth floor. there are other points made in opposing counsel's brief such as the staircase and passenger elevator, but it serves the board to remember this serves the entire building. it's not just about the fifth and sixth floor tied together.

the third and final point, the 1967 administrator's interpretation is no help to the project sponsor. the l.o.d. relies on a interpretation of the planning code 183 which talks about nonconforming use will not be terminated if before the three year period, remodelling is initiated and if the work is prosecuted to completion. this interpretation mentions several actions that can take it out of abandonment and the l.o.d. focuses on the permits themselves but again, no permits has been taken out for the fifth floor. their reasoning is there is no significant remodelling work. it's only painting, refinishing hardware floors and other minor activities. that the fifth floor was not shown on associated plans, the scope of work only shows the

sixth floor remodel and first floor elevator lobby. there is no marketing unless you count the 2014 marketing effort that showed it was proposed to be converted into a co-working space. it shows there is no events, no functions that have occurred since 2014. which all show that no work has been done on the fifth floor to justify the tolling of the three-year period. even if project sponsor may have intended to use the fifth floor, intent is not actual use. in conclusion, the fifth floor space has been abandoned. at this, i kick it off to plenty, malcolm yeung. >> thank you, good evening commissioners. just to be clear, i think eddie made this clear, our concern is with the fifth floor of the emperors of china. it's the banquet space.

it can seat 58 tables between the floor and the mezzanine which makes it one of the five large community banquet spaces in chinatown that historically existed. for those of who have been to chinatown, banquets are how we connect. but it's used by family, associations, regional associations, non-profits, grassroots organizations, cultural associations. you name it, we use community banquet to tie us together and hold us together. the reason we do that is because they're affordable. community banquets run $350 for 10 people at a table. up can't find that anywhere else in san francisco or the region. that is really important. we can access these banquet

spaces because they're affordable. the economic development benefit of banquet spaces is critical to chinatown. we've seen this with two restaurants that have come in, two of the five restaurants. the collateral economic development benefits aren't there. people come in, they pay 500 bucks for a meal, they leave. they don't shop in chinatown. they don't employ from chinatown. and unfortunately, they're so expensive they're not accessible to chinatown. from a community public policy stand point this is critical to the community. >> mr. yeung, i totally understand the issue. but i couldn't link the letter of determination with the prevention of using that fifth floor -- that fifth floor space as traditional use which is a

banquet hall. tell me how you see -- if i missed it, i make mistakes all the time. but how does the letter of determination prevent the use of that space, continuing space of -- use of that space as a banquet hall or prevent -- provide the opportunity for that space not to be used as a banquet hall. >> i completely agree, commissioner. and thank you for asking that question. and let me try to provide that linkage. it's our understanding, you know, that if the commission overturns the letter of determination with regards to the fifth floor only and we're not looking for anything more than that by the way, it would require the project sponsor to exercise a couple of different options in terms of how it wants to go forward with the use. under the chinatown plan, there are some uses that are

principally permitted above the second floor. these do not include restaurant. i will concede to that and that was a point made earlier to me today. we misunderstood the portion. but the uses that are permitted are public facilities, institutional use, housing and massage parlors, but that wasn't supposed to be funny. however, with that said, we do believe that if the project sponsor, the property owner wanted to proceed with using it as banquet space, he needs to seek legislation. as a community we would be open to working with him in partnership to seek that legislation, but as part of the process, ensuring that that space remains accessible to the community as a community banquet space. let me give you an example of a model in chinatown that has worked over the years. many of you are familiar with

the chinese culture center. they exist on the second and third floor of the chinatown hilton, it used to be the holiday inn. apology if it's the wrong floors. but in the 70s as part of the redevelopment of that project, the chinese culture center entered into a community benefits agreement with the holiday inn providing them access, not only to use of the space for gallery and office, but actually use of the space for community banquets at a price they could afford. that is the kind of thing i think we would love to engage in a conversation with the owner on. but to be perfectly honest, we believe it must be be part of a process. >> you're greatest fear is if we agree that the letter of determination is okay and we deny your appeal on this, is that space suddenly gets out of

control. and becomes subject to what that restaurant on the upper floor is going to be and, therefore, the issue of affordability and accessibility to the community is vanquished. >> thank you. >> commissioner tanner: can you help me to understand what you want to have happen is have the project overturned? maybe i'm -- maybe you can help me catch up the last few years in terms of communicating with the project sponsor and property owner. it seems out of step not to have filed any appeals to the planning commission and then come before this body with the letter of determination. i wonder why we're in the position having to do something to allow the community an opportunity to negotiate with the property owner at this point? >> a grouping of organizations, non-profits, who pay particular

attention to the cultural fabric of chinatown initiated conversations with the owner a couple years back. at one point, we did make an offer to the owner of $24 million. he purchased the property for $17.5 million. we wanted to continue those negotiations and in the spirit of good faith we declined to file anything and here we are. >> commissioner tanner: that makes sense. thank you. >> vice president honda: congratulations on your new director of ccdc, correct? >> yes, thank you. >> vice president honda: and happy birthday today. >> thank you. >> vice president honda: i didn't see after reviewing both briefs, the original permit application. it wasn't in your brief and i didn't see it in the project

sponsor's either. do you have a copy of that? >> i need to ask counsel that. >> do we have a copy of the original -- >> can you put it on the overhead, unless you have multiple copies for everybody. i, too, am trying to understand as both my fellow commissioners have asked, if by denying the l.o.d., what does that cause? and you gave me some answer, but i mean, basically what would happen the property would turn to a -- it would require -- you just mentioned it's not even a c.u., that it would require legislation to overcome this? >> as i understand it -- >> vice president honda: i'm sorry, i was looking for the original permit. which is a pink application

form. i'll ask the department if they have it as well. so can you explain the process again, sir? >> as i understand it, and perhaps this is a question for mr. sanchez. but in a discussion, we agreed that a principally permitted use of the space could be, again, institutional, public facility, massage parler, all of which currently would require c.u. above the second floor and housing which is allowed as of right. restaurant is not principally permitted, so for that space to continue as a restaurant, the project sponsor would have to seek legislation. and i would commit that we would be more than happy to work with him on legislation to permit that and perhaps other uses that he's looking at in the building. of course, you know, it would be

important that community could access certain portions of that building, in particular the banquet space. >> vice president honda: the reason why i was asking for the original permit application is because this is nonconforming space and since i've attended many weddings, that was the place in the 80s and 90s, between the fifth and sixth floor, really the only thing there was an emergency exit which they kept open so smokers could go outside as well as an elevator that was dedicated to that floor. so the concern i have here, if the original permit application did not reflect both fifth and sixth floors, i don't see how it works. the reason i'm saying that now is so that opposing counsel can address that as well. >> thank you, happy birthday. >> thank you. we'll hear from the property owner representative. >> representative, thanks. good evening. on behalf of the project

sponsor. i'll skip ahead because a lot of the background has been provided by appellant counsel. december 31, 2014, emperors of china shut down. that started the three-year abandonment period. the project sponsor filed their first permit 2017 to renovate the space. permit was issued in august 2018. no appeal filed. second permit issued in may of 2019 to modify the work. no appeal of that permit was filed. and the work to renovate the space has been ongoing since the first permit in august of 2019. so this space, as we said in the brief, the work done on the fifth floor doesn't require permit. it's carpeting, painting, things don't fall within the jurisdiction of a building permit, so that's why there was no needed. in july 2019, we know that the appellants filed for letter of

determination. the zoning administrator confirmed this is a nonconforming use, because when the restaurant closed it was no longer current with the zoning. there is a really important point about the three-year rule. it does not say that you need to pull a permit within three years. if i can read directly from this. this is the interpretation. nonconforming use is not considered terminated if before the three-year period has passed, remodelling is initiate and if this is prosecuted to completion. so permits aren't required to trigger the end of the abandonment period, the intent to not abandon during that three years. again, the permit was originally filed less than three years after the closing of the emperors of china. there is an argument now that because the permit didn't show

the fifth floor, it shows intent that the owner -- that the owner was abandoning that fifth floor. again, work has been ongoing, carpeting laid down recently. we've actually heard as of today, mr. duffy might be aware of that, maybe not, we just got signed off on one of final cards on the sixth floor for the permit work. again, showing the connection between the two spaces, one elevators that serves own the 1, 5 and 6 floors. open stairway between the 5 and 6 floor. dumb waiters between the 5 and 6 and bathroom on the 5th floor serving the 6. this space only serves one. when we say space, space isn't every square foot. it's the intent with the larger space.

not as literal as what is shown in the permit plans. it's constitutional law in california that work authorized by issued permit, substantial work and costs have been expended cannot be undone. that has been done. all the work has been done. and only thing that is stopping this restaurant from opening is this action. the work is done. they're going to train people 60 days out from opening and they're not going to train people until they have this final issue resolved. and again, i think everyone -- really important point, the appellants are asking that we maintain this as a ballroom. the only way to preserve the fifth floor as a ballroom is to allow the letter of determination to stand and allow them to reopen as a ballroom. if not, the board is throwing us into this process of needing to seek legislation from the board

of supervisors and then a separate entitlement process to reentitle the fifth floor as part of the restaurant. this is the only way to do this without extraordinary measures like new legislation is to allow this to move forward as the zoning administrator has confirmed is the appropriate approach here. and again, just to emphasize, there is no conditional use available to reestablish this space without legislation. so i'll leave it at that for now. >> vice president honda: i had a question regarding the original permit application. i don't see it in the brief. you normally supply that. >> i have the plans, i don't have the permit application. >> vice president honda: it indicates to me, i mean -- i'll talk with the z.a. regarding the 67 zoning, but i would like to see what the actual original permit said. one. and in this particular case, did your client apply for it himself

or did he have a licensed professional or expediter during this process? >> i can look that up in between. >> vice president honda: i would like to know who -- if you could get the copy online, that would be great. also who were the contractors on file as well as if there was licensed professional that got these or an expediter? >> just to reaffirm our position is that what is in this permit is not relevant. the 67 interpretation doesn't require permit, it shows initiation of remodelling. >> vice president honda: as the appellant had mentioned, if this is a michelin star restaurant -- i've been in that place a lot of times -- carpet and paint would not have helped to a michelin star restaurant. you're saying that no electrical was done, no lighting, no plumbing was done in that whole level in a michelin star restaurant.

>> you can talk about that. the work necessary is carpet and painting which does not require permit. >> commissioner swig: it seems that the issue, trying to wrap these things so we can have the argument which is really what is the case. so your point of view, the fifth and 6th floor are wrapped together naturally as they have been historically, and you are being questioned by the appellant because you didn't do anything on the 5th floor because it wasn't necessary and therefore you didn't pull a permit and therefore, you know, the appellant is saying it wasn't linked to the 6th floor. what you're saying is the whole thing is linked, just because you didn't pull a permit to improve, why should you be penalized? is that the point? >> what i'm saying is the nonconforming provisions of the code gets at the intent of the property owner.

we have various rules, one of which says you initiate remodelling, not pull permits, but initiate remodelling three years. above that, in addition to that, the inherent connectedness of the spaces as one space further show -- and with the permit not closing the stairs, it further shows the intent not to abandon the 5th floor. >> commissioner swig: by the way, i'm not arguing. i'm trying to move it along. semantics. it comes down to semantics. because having a back ground in restaurant and hospitality, i'm right there with you. space is the space. if the operator deems the space is okay, then it doesn't need to be touched. an improvement related to the cosmetics could be as far as sweeping the floor and fixing some scratches on it. and then you're done. and what you're really focusing is upstairs and you're linked

between 5 and 6 because people -- because there was a dumb waiter that services both, because there is a bathroom and elevator that services both. is that your point? >> thank you, commissioner, couldn't have said it better to myself. >> commissioner swig: so what it boils down to here is the community wants ballroom space which is historically important to the community and this is something -- i don't see how we do here. this is my problem. am i sympathetic to the appellant? totally, all right. totally. this is history. this is our community. but i'm also trying to figure out whether you breached what was there in the first place and the ongoing use was not an ongoing use and i'm having a hard time supporting the appellants' part on this. so that's why i asked the

question. i only bring these points up so we can all think about it, so the appellant can give us feedback in the rebuttal and you can give us further feedback on it. >> thank you, commissioner. >> i find it difficult to believe there is no work that requires a building permit. it's difficult to do many things which we hear at this board. mr. duffy is not here this evening. so we can't ask him, so i'm asking you and your client, it's your testimony there is no work performed on the 5th floor that requires a building permit, over the counter or otherwise? >> that is my understanding. we just got a job card closed out today. and obviously, the inspectors have been through. >> commissioner tanner: thank you. >> we'll have to figure that out later. >> it's called maintenance versus capital. >> if there is no permits, there would be nothing to inspect on the lower level?

is your client here this evening? >> unfortunately, he could not be here. >> did he believe it would be difficult for the configuration of the space, the restrooms are on the 5th floor, so there would be no need to go to the restroom if the permits had not been full pulled for -- >> can you say it one more time? >> to vice president honda's point, if the work is on the 5th -- i guess part of what is concerning me, the assertion there has been no work that needs permits and that speaks integrity of the project sponsor. which to me is an issue in terms of understanding and having faith in the rest of the facts presented to us. i find it difficult to believe we don't have any other -- we don't have the permit, we don't have the building department here, so i guess we have to take the word for it, but the point being, inspectors have come by, if they observed work outside of

the scope, they would have said what are you doing here. but vice president honda's point, if they didn't have to go to the fifth floor -- >> this doesn't get at the heart of the nonconforming issue. we've all agreed there is work in the space, maybe more work than permitted. the 1967 interpretation doesn't require permit, it requires work done in the space. so it sounds like we're all agreeing that part, that work is done. to your point, i would say the property owner would be more than willing for the board to ask mr. duffy to come in and do inspection of the fifth floor so that any work is done to the permit and properly. >> commissioner tanner: my second is around the discussion between the community and the property owner. it's clear the desire is to have access to space because there

aren't that many spaces. to support your point, going forward with the l.o.d. allows the space to exist and continue into the future. but what is the communication between the property owner, the restaurant, et cetera and the communities to this point? >> i'm sorry i wasn't involved with the conversations. >> is anybody involved in the conversations on behalf of your client? >> would you give us the time to look up the permit during public comment. and i'll come back. >> president lazarus: i would like to remind us what is in front of us, a letter of determination. this is not about any of the permits that have been issued or not issued or should have been issued, but really like us to stick to that. and i'm going to balk at the idea of asking mr. duffy to look, because i don't believe personally that is relevant to the matter that is before us. so just had to say my piece. >> thank you, commissioner.

>> we'll now hear from the planning department. >> president lazarus: speaking of the issue at hand. >> thank you. scott sanchez planning department. the subject property is located within the c.d.r., chinatown visitor retail zoning district. the uses then were allowed when it was constructed. in 1987, the current zoning was put in place. the chinatown mixed use zoning districts were added to the planning code and has been under that regulation since that time. so, couple developments on a timeline. in 2014, the emperors of china closes. in 2016, there was new owner of the property. we had a series of letters of determination, one in 2015, one in 2016 and two in 2017 in

addition to the one that is on appeal before you now. they sought different consents. i think -- concepts. i think a lot of different things had been floated for how the building would be used. including office. i did -- i was involved in the review of one or two of the letters that sought guidance on that. i think that was back in 2016. they were not able to provide enough information that would satisfy our requirements to document very clearly the historic use of the building. i think they were arguing in their letter of determination that the building was largely office and we didn't have -- the office is generally prohibited there and they couldn't provide enough evidence to support that determination. but now we get to where we are today. there were a series of permits that were submitted to are the property going -- for the property going back to 2016 and

i think one of the first ones was in 2016, it says, 5th and 6th floor, soft demo of restaurant, former emperor of china space. there is a permit for the lobby in 2016 that was submitted. one for change of use at the basement level. which had also level public process on it as well. and some building permits for fire sprinklers. the permits that have been related to the restaurant use, they're not before you, because they were never appealed. there was never a discretionary review filed, not even a jurisdiction request that could have been done at any time. there has been no attempt to bring before the board an appeal on the merits of the underlying

permits. instead, the appellant in the case submitted the letter of determination to get a response and then they could have something to appeal to the board. personally, i don't think this is a fair use of the letter of determination process by this fact nothing would ever die in san francisco. nothing would ever be resolved because somewhere down the line you could request a letter of determination questioning how that was done and create a new appealable action, potential conflict. we have an appeal process. we're here often. i don't see why underlying permits, even if they're just jurisdictions requests, attempts could be made to get at this issue more directly i think, in my professional opinion, is abuse of process. i don't think this is fair. i don't know what is behind all of this. there is a lot of issue concern with the community which i can totally understand. i just don't think thinks the

appropriate -- this is the appropriate vehicle or process for it. we have a lot of processes that are meant to elicit, incite, create public input and i don't think a letter of determination was created for that process. i think it was created to answer questions about the planning code and clarify what the code requirements are. this is where we are now, so we're here to present this. we do think that the letter of determination is correct. they did obtain permits within the required timeline to further the use. i was somewhat baffled when the brief was submitted in making the arguments that, now e, the letter of determination would somehow destroy the very value banquet use on the 5th floor. there is nothing in the letter of determination that says that.

it will abandon that banquet use. restaurant is not an allowed use. that's why we're into the whole three-year. it's a nonconforming use. if the space is abandoned, it has to revert to something that is allowed in the planning code. it is fairly restrictive in these districts. especially on the upper levels. so some of the uses that the property owner could convert it to, i mean they wouldn't be obligated to try to restore the banquet. they could go through something else that is loud in the zoning -- allowed in the zoning of the property. so they could do institutional uses or generally principally permitted except hospital and cannabis dispensaries are prohibited. hotels are allowed with conditional use. foot chair massage, allowed with

conditional use. trade offices. that's like a contractor's office, principally permitted. i mean that is basically what it comes down to. so, i just don't see -- there is no evidence here -- it doesn't even get to the point that the appellant has raised, the main reason for trying to protect the space is seeking this appeal, their very actions would jeopardize the space. i think they would be able to work with the board of supervisors to create legislation for something in the future, but there is no need to do that because we've determined that space has not been abandoned. so, i'm available for any questions. housing could go there as well, but they wouldn't comply with rear yard requirements. they need modification to do that. >> commissioner swig: so what i

see here is that because there was no need for new electrical, no need for any plumbing on the 5th floor. there were no permits applied for, correct? >> there is one permit that referenced the 5th floor from 2016 that spoke to soft demo on the 5th and 6th floors. but that didn't do anything necessarily to further remodel the space fort future use. it was exploratory work. >> commissioner swig: what i see also is due to their past linkage as banquet hall or restaurant use, food and beverage use on the 5th floor and obviously the restaurant on the 6th floor, they are connected historically. and why this letter of determination, the point of challenging this letter of determination is that the 5th floor doesn't automatically fly

with the 6th because there was nothing done because a major permit wasn't filed? >> there is nothing under the code that would require a permit for every square foot of the space. if you have a large space and you're only remodelling a small part of it, that is work -- we see this as one space. >> commissioner swig: that's my primary question. you see this as one space regardless of the fact that no major permit was required on the 5th floor to go along with the work on the 6th floor? >> yes. >> commissioner swig: secondly, i think -- i absolutely -- i think i absolutely agree with you, the community -- this is a community issue. they want that banquet space maintained and i happen to be in agreement with them, but that's kind of like a civil case thing as opposed to -- or a community case thing as opposed to a legal

case. and really if the -- if we denied the letter of determination, then it would really be to the detriment of the community because that would set the whole thing off in whatever direction that landowner -- the developer, the space owner wanted to handle. and where right now it's baked in as a banquet space according to the letter of determination, is that correct? >> the shorter line to having this restored as a banquet space is if the letter of determination is up held. if it is overturned, it wouldn't be able to be used as a restaurant. there is no guarantee they couldn't go through the legislative process. there are other things that could happen.

>> commissioner swig: so would we, again, i'm asking a question just for the record that you've already answered, but would we do harm to the community in their intent to maintain this space as banquet space by finding for the appellant, number one? and -- where was i going -- i guess and is there -- thank you, i just needed a minute because of the brain. and is there really anything that we can do for the community regardless of whether we find for the letter of determination, deny the appeal, or uphold the appeal in assisting the community with sustaining this as a banquet space? >> upholding the letter of determination won't, unfortunately, mean that it is going to be a community serving

banquet space because it's up to how the property owner utilizes it. overturning it will mean that it can't be used, even if the property owner wanted, it couldn't be used as a banquet facility without -- i'm sure there is political calculations that people are making in terms of how best to get the desired result, but you know, i try not to -- we're not involved in that. what we're looking at is the code and the application of the code and we think this is code-compliant and that they have met the requirements of the code. >> commissioner swig: so you're in support of the letter of determination, that the code has been met and all legal stipulations have been complied with? >> yes. >> president lazarus: can i clarify if we were to overturn the letter of determination, the restaurant use goes away as well? >> the appellant is arguing that only the abandonment applies to

the 5th floor. they're conceding that the 6th floor has permits. and they're not contesting that the 6th floor may remain as restaurant, but simply, the 5th floor space is what is in question. i believe that is -- >> president lazarus: what is the implication of the l.o.d.? >> i mean this is unique because i guess we would have to discuss with the city attorney's office, because there is not actually a permit before you to take a specific action or entitlement. it's not like we would be approving plans after the hearing, based on the hearing that say restaurant on the 5th floor. we would have to discuss with the city attorney, do we issue an enforcement action? if there are no permits on the 5th, we can't suspend anything. it would be a brave new world. i don't know how we would handle it exactly. this is why this is not an appropriate vehicle for this.

it should be a building permit and people can appeal on the merits of entitlement and have plans and project. >> vice president honda: i agree this is strictly regarding an l.o.d. and whether it's used inappropriately or not, it's whether the l.o.d. was issued properly. the reason i ask, do you have a copy of the original permit application? >> what do you mean by original? >> generally, as i've been told, that if there is no activity for three years, then you lose the right for the nonconforming action. now what counselor said, was in 1967 they exempted that from this particular building is that correct? >> no. are you asking for the permit that originally authorized this two story restaurant? >> vice president honda: no i mean when they did in this 2016, the renovations, because what is important because the l.o.d. is

based on the activity of the permit being issued. that three years would have lapsed already in issued in 2016. the fact that the 5th and 6th floor have historically been together -- bank of america has a 52 story building, because they have all 52 stories do they need to separate one from the other, especially if it's from a nonconforming use? >> the building department requires separate permits for separate buildings. especially if it's one use. i don't think they would need to be separate permits by floor. then people are arguing serial permitting. >> vice president honda: because we're talking two separate floors that were not physically connected other than an emergency stairwell and elevator, right? for the letter of determination to be upheld and correct it

meant there had to be a legal permit for the space. what your argument is that the permit for the 6th floor is encompassing the 5th floor. that's why i asked to see the original permit application as it stood so i can see who filled it out. i asked counsel did the client fill it out or did they have licensed professionals or expediter do it? because if it only indicates the 6th floor on the permit, in my mind, that letter -- the l.o.d. is flawed, right? >> i did look at some of the permits and the architect is listed as point of contact on most of the permits that i saw. and i know he's been involved and he had been involved, especially the ground floor. i think he requested one or several of the letters of determinations. rick gladstone has been involved

at some point. >> vice president honda: winner, winner, chicken dinner. >> those are the names associated with the project. but in terms of we view this as one space. >> vice president honda: i understand that you're saying that it's one space, but having been there for decades, it is in the one space. so by hooking up -- so b of a has 58 floors, we're going to work on the mezzanine level, does it give a right to work on all the levels? no, it does not. have you done a site visit to the property? >> no we have not. >> vice president honda: i'm just trying to clear up what it is. what is before us is a letter of determination. and in past, if there was no activity on a permit for three years, that permit would lose, especially this is a nonconforming space? >> there is a permit they have

that they're working on. >> vice president honda: what we're questioning is the 5th floor not the 6th. the permit is for the other floor. >> this is one use, we've calculated it as one use for purposes of area and for the use size. we wouldn't require a permit for every single square foot. if they did work only on one floor of a use that is on two floors, that would satisfy our requirements. >> vice president honda: shouldn't the description be on the work, because the thing is, i have a four story home and i'm doing work on the floor. i should describe the work that was done. what the appellants mentioned, this is supposedly a michelin star restaurant. if you've been in that space over the last 45 years, i don't think paint and carpet would cover it to be honest. there is no way that paint and carpet is going to transition a

60-year-old restaurant into a michelin star restaurant. >> okay, but mr. sanchez, are you aware of anything in the planning code that says we have to treat this floor by floor? why not cut it room by room? they abandoned certain parts of the two floors, but the bathroom they didn't abandon, so the bathroom can stay and the other floors -- i don't understand how that could ever make sense? >> for that reason, i agree, it doesn't make any sense and for that reason, we wouldn't require permit for every -- oh, you didn't do work in the closet, sorry the closet has to be a different use. >> it's asinine to tell people they have to do it or nothing. the code section here doesn't

require a permit to prevent abandonment, what it requires is remodelling. >> even past determinations have said if an applicant has been actively marketing, because we have down economies. we may be entering one now. what happens to these uses? we're concerned about vacant store fronts? so what happens when somebody is trying to rent out the space, not able to find a tenant because of the economy, so we're going to have 0 remodel the entire space while working that? we have to add reason to the process and be flexible and fair. >> from the view of the planning department, this owner before the three years was up, this owner started to and has continued to try to create a restaurant in this space and that's all you require what would otherwise be abandoned?

>> can i just clarify? so they don't need a permit to keep the nonconformity. >> it doesn't require a permit. >> as long as they just remodel. >> we don't want people to do work without requiring a permit. we've had in cases where i got like i said, the substantial effort to use the space. leasing and trying to lease it, but you know, the economy is so bad -- >> vice president honda: i'm just trying to clarify. the code is written that this is nonconforming space, they can leave it blank for five years and keep the space, is that what you're saying? >> no. some activity. like what is going on within the three years? is there intent to abandon? i don't think the property owner has exhibited intent to abandon. >> it may be helpful if you

restate what the code says about abandonment. maybe put it back up on the overhead. >> this is from 1967 interpretation, but as nonconforming use will not be terminated before the three-year period. remodelling nonconforming spaces and this is prosecuted to completion. that's what i asked. >> we've even had more flexibility than this. because i know there have been certain cases where someone has made good efforts to rent a space out, not even doing work, and we've allowed that to count towards -- they're demonstrati g demonstratidemonstrating -- >> so one has a nonconforming space and left it blank for eight years, if they've painted it, you're going to let them --

>> hypotheticals can be challenging. if you had a space that you didn't use at all for five years and had a three-year abandonment window, we would call that abandonment. >> so i'm trying to -- i'm showing a bias from being in the hospitality business as long as i have and dealing with restaurants and banquet spaces. and live look -- live looked at the plans, because the 5th floor wasn't being renovated, there is no specific plans on the 5th floor like the 6th. but just a technicality. and maybe you have 5th floor plans. i see rest rooms, i don't see

any of the banquet space. on the 5th floor, are there any kitchens? are there any pre-function areas? are there any service areas with regard to the service of food or the prep or pre-prep of food? i'm just trying to establish that the fifth floor is really -- is dynamically linked to the 6th floor because clearly there are -- there is a space for warming oftens. there -- ovens. or there is a place for dishes come back after they're collected after the banquet, which would link this to the 6th floor where the major kitchens

are. we don't have them here. >> there has been a lot of research on this. we've generally viewed this as one use may have two discreet functions, but a lot of restaurants have banquet rooms or dining rooms, we viewed this as one. we didn't get into such a fine level of analysis, what is the actual crossover if any? how independent are the spaces? we lumped it together and we didn't go further to say, can they exist separately? we just put them together as one. >> commissioner swig: just because they've been used historically together in the past and you didn't look in the elements, gee, folks, there wasn't a kitchen on the 5th floor, but clearly without the elements, there wouldn't be a

connection. >> we didn't get to the left level of restriction in the space and you're in violation because you moved the prep kitchen to a different floor. we put it in one space and they can use the space as needed for the restaurant business. >> thanks. >> okay, we're now moving onto public comment. how many people are here for public comment? can you raise your hand? okay, given the volume of people, we're going to limit public comment to two minutes. if you could please, after you speak, hand the speaker card to mr. longway here up front so we can keep track for the minutes? you can line up against the wall to be efficient about it. you can come to the microphone. >> somebody please start. we have a full room and we want to get started. thank you. >> good evening. >> thank you, my name is larry.

born and raised in san francisco chinatown. i'm also the executive secretary -- >> far wall, it's a fire hazard. >> of the chinese benevolence association. this association is known as six company. it's like the chinatown city hall. i don't think we have the time or afforded the time to take a look at this plan that went through. and our understanding since it's going to be michelin star restaurant upstairs, our concern is what is going to happen downstairs. and we think that it needs to be revisited and that you accept appellants in support of his motion because currently

chinatown is pretty much whittled down to two restaurants. and it would be historical for you guys right now, you can make history here, or you can turn -- change the hands of time here. because it's very important to our community that many of the people that work in these restaurants that are not michelin restaurants come from the community. and it gives them a time and also to be a part of the community. we like to say open it back up for us, which we did not have the opportunity to voice our concern. if you want to contact me, feel free to contact me. my number is (415) 794-1078 on the record here to support the

appellant. >> thank you. next speaker, please. good evening. welcome. >> my name is charles. i'm deputy ca too. there is a lot of association. chinatown, there is 300 association. every new year they get all together, they get banquet. now we only have three restaurants. cannot meet it up for our community to service 300 banquet. by the way, on the time, emperor of china holds 56 people. you form a community. right now we need a full for the community and affordable for the community. thank you. >> next speaker. >> folks, if you can make sure

the door is clear. >> good evening commissioners. my name is calvin. i'm here as a concerned citizen. i was a former tenant of the owner in my dealings with the landlord i found him very unethical and unprofessional. the reason i say that is soon after he purchased the building in 2016, he wanted to raise my rent from $3,000 to $11,000. i speak to his credibility as to

me. that's all i wanted to say. >> vice president honda: thank you. next speaker, please. >> sir, did you give your speaker card? >> good evening. welcome. >> good evening, commissioners. joyce lamb with the chinese progressive association. you're going to be hearing from a lot of people about why space in chinatown really should serve the community. and that means those who live work and shop here. and we have known that affordable community banquet spaces and these banquets are part of our history, social, culture and fabric and especially in this current moment with covid-19. our community, low-income residents, workers, small businesses. you know, we really need the space to be for community and we cannot afford the impact of further gentrification. i think this is commonsense that luxury restaurants that cater to a client's health is not going to help anybody and the economy.

we know that what drives neighborhood business is a process where community it's involved in planning -- is involved in planning how the community looks. we know the high end restaurants don't bring foot traffic. if our community talking about seniors, the low age workers, small business owners, if they're part of planning how our spaces are used, there is much more ownership. so today, i'm part of the community here to urge you all to reject the letter of determination from the zoning administration so that the community can have the process to discuss with the planning commission. >> good e.j. -- evening. i'm annie chung with shelter for the elderly. i'm here today to support the appeal. i sent a letter to the commissioners earlier detailing

why this opportunity needs the affordable banquet space. i have scheduled a spring banquet for my seniors. 600 were going to attend on march 20 when i announced because of the virus we have to cancel the event, you could just see our seniors' faces fell. they were so disappointed, so sad. for our community to thrive, we need a social space. have a meal, have our socialization, meet friends and family. very soon the new asia space will make room for affordable housing. so we're really down to no space that is accessible, affordable and our community could get it together. so please deny the letter of determination, give us time,

give the landlord and the new owner time to come back to the community, negotiate and talk about what the community needs and see we come to a compromise. >> thank you. next speaker, please. >> good evening. my name is sara, i'm the co-chair of the asian pacific island council and the executive director of community youth center. the asian and pacific council has about 50 members serving predominantly asian community with over 350,000 constituents. many of our members has been using the banquet hall for the affordable fundraising. we celebrate 47 annual youth volunteer luncheon every year because it's affordable to us. we're going to have only new asia and one more banquet hall, it's going to be hard for us to continue the social gathering

events or community events for our community, both young and old. so i really hope that you consider to support the appeal and make sure there is a process where the community can weigh in to discuss what is bet for the community. -- better for the community. >> reminder to members of the public not to touch the microphone or the assistant can adjust it. >> good evening, welcome. >> my name is emily lee. i'm the executive director of san francisco rising a multiracial alliance city-wide in san francisco. we don't represent just chinese communities or just chinatown, we're actually representing organizations and members who live in south of market, in the mission, in bayview, chinatown. we're standing in solidarity with those seeing the kind of most direct impact of what would happen if the letter of determination is not rejected. and so we heard earlier today,

everyone was asking, well, our issue is narrow. did they break this rule? that's totally understandable from your point of view. our job as a community is to use every process as we can to have the voices heard. i'm asking you all to broaden a little bit, as people serving the public good and interest, maybe it doesn't fit everything in the letter of the guidelines and actually consider what is the bigger social impact of letting this letter of determination go through. so i think that is kind of the appeal, you know, what can we -- you're going to hear a lot more testimony after this, but the reality is that there is more at stake here than just did someone break a rule or not? did someone get a contractor in here? things that everyone has said

here i don't want to repeat, but there is a lot to say, across san francisco when communities are standing united and want to oppose a project, i a lot of projects will not happen. it's not that people don't want to see the site developed, we just want the site to be developed in a way in partnership with the community and work with the owner and landlord to do that. >> thank you. next speaker, please. good evening. welcome. >> thank you. my name is stephen and i'm executive director of the center for asian media. we're not located in chinatown although we do a number of programs. we support filmmakers that tell stories about asian-american communities. we believe in the power and importance of storytelling and the way that it binds communities together.

part of the reason that we are asking for you to broaden in a sense the scope of what you're doing is because it's extraordinary that different organizations with so many different kinds of missions have come to realize how precious and how much at risk a community, a unique and vital and precious community like chinatown is. and we believe we just need the opportunity to make the best case so this unique chinatown does not go the way of all the other chinatowns in north america. where it's nothing but a sign. where the residents have been forced out by economics. we believe in the right of property owners to develop property, but we think this needs to be negotiated with community interest as a vital element. so thank you for your consideration. >> vice president honda: thank you. next speaker, please. good evening, commissioners. my name is jenny low, representing the chinese culture

center of san francisco, a non-profit based in san francisco, we're a 50-year-old organization and i'm also a member of the chinatown arts and culture coalition. we join our peers of cross sector community organizations in support of the 5th floor. there is broad support for affordable community space. we join our peers including the chinese historical society of america, center for asian media, chinese for affirmative action and other groups. affordable banquet space is critical to chinatown survival. we understand the importance of gathering people together to share food as part of our cultural heritage. but particularly in san francisco chinatown, which is a gateway for new immigrants and the working poor, affordable banquets play a unique role in maintaining the culture and

there is no opportunity for groups and individuals to meet and celebrate anywhere else in san francisco. this is place for birthdays, anniversaries, weddings and there used to be five spaces in chinatown that seat over 500 people. they're down to two in chinatown because an alarming trend of converting large banquet spaces to high end restaurants. on behalf of the community we serve, we urge you to support the appeal for the community. >> next speaker, please. hi, commissioners. i'm here representing myself. i'm an artist and current resident of chinatown. i grew up in the community and having grown up in chinatown i've seen a lot of restaurants come and go. at the time when i was growing up with the place we celebrate my uncle's 60th birthday.

and the reason why the emperor stayed so long because it was affordable to the community, it's where our neighbors worked, our milestones were celebrated and a place of gathering for us. the reality is, having a luxury restaurant in the community not only is not affordable, the community won't see it as an establishment that is accessible, approachable or representative of chinatown. so recently, as you know, there is a lot of luxury restaurants and hotels coming up around chinatown, in and out of chinatown, so i want to show you a picture of a chinatown i know very well. it's actually two worlds side by side. where restaurants like the empress, they want to create right now is known to fine diners and they will eat and pay

for luxury foods and across the street will be where a family of five is crammed into one room and working multiple jobs to pay for $1900 rent. so i'm asking you all here, here's an opportunity to open this up to community members to decide what we want to with the -- with the space. >> good evening, my name is connie chan. i was born in hong kong. i came here 13 years old, didn't speak a word of english. and came to chinatown. my mom still lives in the same rent controlled apartment that i grew up in chinatown today. and i'm here because chinatown to me, but especially empress of china, for someone like me, a new immigrant at that time, working class family, it was a jewel of chinatown and yet it was still a community hub that

was accessible to everyone, including someone like me. so here today just like what emily lee from s.f. rising said. community like us, we have to use every tool in our toolbox to get what we can get to keep our community together. and today here, i ask you commissioners, please consider the fact that broaden the sense of technicality of your consideration and support this appeal and allow us to make sure that the owner of this property will come to the table and talk to the community and make sure that continues to be the prize jewel of chinatown but also a community hub for all of us. thank you for your consideration. welcome, good evening. i'm former san francisco supervisor, assessor, but most

importantly i love the community. i consider myself a community builder. i have lived in chinatown for 15 years. my twin girls were born and raised in chinatown. i still work in chinatown. this issue is very important to the community. as you have heard from the chinese companies to the community service organizations to individuals to small businesses, we are all in support of each other. and like many communities, chinatown really is a living community as well as a place where small businesses thrive and elderly retire into the sunset. we all have a responsibility to each other. and i am shocked. i am totally shocked when i heard the zoning administrator make that determination without one visit to the building.

i have gone to empress over a hundred times. maybe even more. we all know the 5th floor and 6th floor are separate. 5th floor is always the empress where community banquets took place. it has a separate kitchen. you ask any empress former employees they will tell you that. the 6th floor had always been the high end restaurant with the bar and that is where people drink before they go down to the 5th floor. it has its own separate kitchen. we all know that. how could the zoning administrator make such an important decision on behalf of our community without even one visit? i am appalled. i hope that this is a lesson for all of us and i hope that you will repeal the letter of determination so that we can all learn that we can all learn -- >> thank you, thank you. i welcome the opportunity to -- >> thank you, your time is up.

next speaker, please. i'm the co-chair. i represent the folks who live in chinatown over a majority of them live in s.r.o.s. these are 8 by 10 rooms where whole families live. we fight and we have fought for over 50 years for open space and for improving parks in chinatown. our people are not going to be using a michelin star restaurant. i can assure you that. they can scrap together their life savings and still not be able to go to a michelin star restaurant.

i think that it was really to put it in the word of the streets, kind of chicken shit for the planning administrator to say we didn't raise the issues sooner. we were trying to negotiate in good faith with project sponsor to get him to relent on some of the things that he wanted to do and then to open up banquet space in chinatown. so it's not like we were just sitting around doing nothing while he continued to do work on the building. you've heard from one of his tenants what kind of guy he is. we've dealt with him before and he is not a good actor. so i urge you, do the right thing, show some courage. step out of the rules and do

what is right. >> vice president honda: thank you. next speaker, please. >> good evening. welcome. >> good evening. i'm here as a member of the democratic club. i'm going to start with the heart. i'm italian and my culture where you meet folks is in the piazza, on the city place. i remember my grandmother taking out from her kitchen a little chair to sit outside so she could talk and greet people. when i immigrated here about 12 years ago, the only place that felt like that was the banquet hall. that's where people come together. that's where seniors, people my age, people younger all come together. we really can't say how strongly these gathering spaces in a place like open space is at a

minimum. [please stand by] [please stand by]

. so those of you not as familiar with our community, it's the second poorest neighborhood in the city. half of our community lives in hotels, and it's most densely packed area west of manhattan. the luxury restaurant will not benefit this community. our low income residents do not have the means to patronize a michelin star restaurant. this will only be used by outsiders who want to carve out a piece of chinatown and use it for their own culinary

playground. our community opportunity doesn't need a michelin star restaurant. it doesn't need to be revitalized by outsiders. what our community does need is your support. we need your support to keep chinatown for the people that built it. i urge you to reject the letter of determination and support the appeal. thank you. >> thank you. next speaker please. good evening. >> good evening. hi, my name is rosa. chinatown is home figuratively and literally. i was born, raised and, r, live and still work in chinatown. i grew up eating affordable meals in the neighborhood and attending many banquets as well. banquet halls is a large part of my childhood and currently. i attended my childhood friend's wedding in chinatown who grew up and lives there. she decided to have the wedding

in new asia as it was affordable but mostly because it was easy for everyone to get there. her families live around the neighborhood, it was home for her. now we are losing another banquet space, and for those who need to have banquets in chinatown will have a harder time booking a space there. having a michelin-star restaurant will not benefit anyone in the neighborhood. we need an affordable restaurant that everyone can go to. that is what will bring people in. michelin star restaurants doesn't mean it will bring people in. it deters the locals in the neighborhood from going as we can't afford it. please reject the letter of determination and support the appeal. thank you. >> thank you. next speaker, please. good evening and welcome. >> my name is katie, the president of the rose pack and i'm here to share my personal experience as a former chinatown resident and currently work closely with the chinatown

community. i was born in hong kong, came to america and chinatown when i was 12 and didn't speak english. i still remember growing up on broadway street. every weekend i would look forward to going to drink tea at our local restaurants because that's the only time where my family and i could enjoy quality time together without being crowded. many young generations like me who grew up in chinatown hang on to the memories of attending restaurants like new asia, gold mountain and far east. it is part of our childhood to accompany our parents, part of this social networking in the community. as i go to work with the community, going to the lunar new year's banquet, spring luncheons at banquet halls has become a regular practice. i look forward to banquets because that's the time when the community gets together to celebrate our roots, tradition and culture.

but we only have two banquet halls today. this traditional banquet halls is how our community thrives. i hope to see the spaces come back to life. i know this is a tough decision on you guys. i just hope that when you make a decision, keep our residents in mind. do they need a michelin star restaurant? are they able to afford the michelin star restaurant? or do we need a banquet space where it will serve hundreds and thousands of people in chinatown for many generations to come. >> thank you and congratulations on your election win at democratic central county commissioner. good evening, welcome. >> good evening, commissioners. my name is curtis, i'm with the rose pack democratic club. i urge you to reject the letter appeal. i used to live outside chinatown for a few years. i want to follow up on what a few commenters doing what's by

the book. i know you are doing everything correct and you can say you did your job but is it right that chinatown is losing so many community spaces? is it right that san francisco is continually becoming a place for the uber rich. there's a new development that's three bedrooms, $15,000 a month. that's what san francisco is becoming, that's what it is. and that's who we are building for. so you can play by the book, you can do what's technically right, go home at night knight while the community suffers so i urge you to not do what's technically correct by the book but to do what's right for the community. so i urge you to reject the appeal. thank you. >> thank you. next speaker, please. good evening and welcome. >> hello, commissioners. my name is jason. i'm a lifelong san franciscan and working in chinatown. i want to echo the support of of

the people here who spoke about preserving affordable community banquet space. we want to see the owner work with the community to ensure this space is a space that people who live in the neighborhood can actually afford to use. the only way to ensure this is if you reject the l.o.d. and therefore i urge you to support the appeal so the community has an opportunity to work with the owner and create a space that is going to be beneficial for the people who actually live in the neighborhood. thank you. >> thank you. next speaker, please. welcome, commissioner. >> thank you. good evening, commissioners. my name is gail gillman, a resident of north beach for the past 18 years, and for the past decade i have volunteered and supported work within the chinatown community. i echo everything you have heard today. but i want to offer you a technical pathway to reject the letter of determination. as a former d.b.i. commissioner, for years i sat on that commission and we saw

unpermitted work that took place under the guys of proper determinations, permitting and other places and it was a sad after the fact when we realized that work was done. as someone who's been to chinatown a few times, i can tell you the space is not continuous. the fact that the planning department staff didn't go look at the site, the fact they are claiming it is only painting and carpeting that's going to be done, i feel that we will sit back in history and regret if you don't uphold this appeal, because more work will be done. we've seen it happen in commercial spaces throughout the city. i urge this commission to listen to the community to reject the letter of determination. allow the project sponsor and the community to work together for a pathway that works and also to ensure that on the fifth floor, we have permitted work that lives up to the standards of our community and the d.b.i. thank you.

>> thank you. next speaker, please. good evening, and welcome sir. >> good evening. my name is david with the rose pack community funds. we are here because we don't want to be, unfortunately, we are here because we had over three meetings where the owners left to discuss a potential compromise with the community. that's why we did not sign any opposition to his permits. but first i want to tell you a story about my own experience with the owner's group. back in 1999, as a young organizer dealing with a building at 665 clay street. the rule said that it allowed the owner to utilize the ellis act to evict the first residential hotel in chinatown. 50 seniors would have been put on the streets during christmas, 1999. my first case as a community organizer in chinatown. the same owner was him.

based on a technicality, we cannot do something that we cannot undo. we are talking about a the same analogy. it is not merely a restaurant. each floor, all six floors have about 10,000 square feet. the fifth floor is a huge space that sits legally, we all know this, 58 tables, but usually we get upwards of 800 people, 900 people, sometimes 1,000 people for these parties. nowhere in the city has a restaurant that has a fifth floor of that size. this is our community space of my this is one of our last regular spaces that we need to preserve and we hope the commissioners today will consider that petition. thank you. >> thank you, sir. next speaker. good evening. >> good evening. my name is vincent, i'm the coexecutive director of chinese for affirmative action, a community-based civil rights

organization in chinatown where we have been for 50 years. the building we own is two doors down from this property. as you consider this, i think you have a choice about how broadly or narrowly you want to interpret things. i think the reason you have that latitude is to hear from the public and understand what's at risk. this is how we lose chinatowns. this is how we lose chinatowns in philadelphia, how we lost chinatown in new york city. this is how we lost chinatown in washington d.c., by the rulings that failed to see the bigger picture and failed to listen to the public that comes forward during public comment. there is enough around this particular building both in terms of its unique place in san francisco chinatown but also in the city of san francisco as well as a lot of unclarity about exactly how we got to this point. commissioner honda referenced it, both david and i have been involved in negotiations with the owner. we know a permit expediter was

involved, that's currently in the news under federal investigation. we also know that the department of building inspection director is currently suspended. all these things give you enough room to give us a chance to exercise what everyone is talking about under coronavirus, which is an abundance of caution, an abundance of caution to not lose another chinatown. you have heard from the public how important this space is. >> thank you. you have 30 seconds, sir. >> exercise an abundance of caution. that's all we're asking as a community. exercise an abundance of caution in the same we we are doing with public health, you need to exercise an abundance of caution for the future of chinatown. look at what is happening around chinatowns across this country and north america, they are disappearing because of narrow interpretations of law that we try to construct in the past exactly to prevent this situation. >> now your time is up. thank you. >> is there any other public comment? we'll move onto rebuttals.

mr. young, you have three minutes. >> you took off your shirt. this is serious now, huh? you took off your jacket. >> sorry, i was a little warm. >> so are we. >> i want to say thank you to all the supporters but i do want to take issue with them on one front. i believe you can do what's right and what's legal here. i don't think you have to make a choice between the two. and i just want to point out a distinction. mr. sanchez stated you don't need a permit evidentiary basis for arguing continuation of the use. you just need to show diligent prosecution. i heard him repeat two standards, one was a lease and the other one was prosecution of remodeling work. i would ask the question was the remodeling work on the fifth floor prosecuted during the time period of the three years that expired in december of 2017. i would ask whether or not there's a lease for the fifth

floor, because i think those go to the evidentiary standards. i want to make one other comment here, which is i've heard the argument that the only way to go forward with the restaurant is if you reject the letter of determination. i want to pose the opposite of that. if you support the letter of determination, that community banquet space will not be accessible to the community for affordability reasons, period. we know that. we absolutely know that. and the only pathway for the community to access this space is through legislation that would create restaurant space that we could then work with him onto get what the community needs. so i'm going to stop there because my counsel tells me not to talk. >> i want to address first of all at the top there was a question about the relevance of permits itself and that the issue at hand, but just to emphasize before this board the l.o.d. depends on analyzing the permit itself of my that's the entirety of page two.

we restated things like the elevator and staircase that service the building, there was the mention of kitchens servicing the fifth floor in public comment. commissioner tanner is right that it strains the imagination as to why there would be no permits needed for a fifth floor when you have a restaurant up above if the intent is to use it as one space. the intent to use is not use itself. there was repeated references to the language of section 183 that says well, we don't need to show permits for the limitation, but returning to the four corners of the l.o.d. it relies on the zoning administrator interpretation, not plain language, which is why we are see saying we need to overturn the l.o.d. based on that reason. the permits are total of three years. you could just apply a coat of pink waiting for the market to return and use it for whatever you wanted if you were not clear on what that space was for, which is why looking at the

lease is actually really key for the fifth floor space. finally, this telling that opposing counsel can't comment on conversation with the community, which is why you have heard today that this process is key. no other better birthday present for us to work with the project sponsor and developer. thank you. >> thank you. >> i have some questions. a number of the members of public say if we grant this appeal, that will drive the property owner to the bargaining table. can you explain what that means? >> the hope is that the letter of determination just doesn't steamroll basically the process involved in doing input. there can be a hearing as previously. we can also potentially get to a legislative course of action as well to ensure there's community input on the fifth floor space. >> to accomplish what? >> to determine the actual use of the space itself.

right now, the space is a black box. we don't have any sense of what it's being used for. it could be a private event space, a coworking space only inserted into it. there's no clear sense of what the fifth floor is for. >> wouldn't a legislative solution -- couldn't the legislature do something with this, whether, no matter what we do today? >> no, i don't believe so. i believe that you went forward with rejecting the letter of determination, it would not be something that the legislature could do to retroactively then remove that decision. i think it would place the city in legal jeopardy, frankly, with regards to your previous question. >> the risk of placing us in legal jeopardy regardless. >> that's our job. >> people invited us to ignore the rule of law which i can tell you i wasn't interested in doing but you can continue. >> commissioner, again, i would

just respectfully differ on that. i do think there's a legal pathway here. and frankly, it's based upon the definition of prosecution of due diligence but i want to address your first question to the counselor which is a legislative pathway would put us in a position to negotiate how the terms that have community banquet space could come into play. for instance if the legislation would require you to seek a c.u. at the planning commission to gut get it the restaurant space approved, we could be in a position to negotiate with the owner and actually impose community access of the conditions of approval, which we've seen in other cases. and i just want to repeat the words of connie who came up earlier, community has to use whatever tools we can get. we just do. >> i take objection to being described as a tool but i understand your point. [laughter] so my question then is is you're saying there's a legal pathway.

so planning code section 183a, that's says that when you have a non-conforming use, there are only two ways that non-conforming use can be lost as of right. the first way is if you use it as a conforming use for three years for continuous period of three years. that is not the issue here. the second way is if whenever there is otherwise evidence a clear intent on the part of the owner to abandon non-conforming use during those three years, clear intent to abandon, can you tell me, what is the evidence here that there was a clear intent to abandon? i can understand the argument that they didn't file a permit, the permit doesn't include the fifth floor, maybe they are doing work that's unpermitted. i'm not sure how that helps you. i think that hurts you if they are doing tons of work on the fifth floor, that would suggest they really want to use it. where is the evidence that there

was a clear intent to abandon? >> so l.o.d. that we are asking to overturn with the board is actually on the language that we would refer to is the second paragraph that follows the recitation of that. >> i'm looking at the planning code. the interpretation we can defer to it or maybe we don't defer it to. our job is to apply the law. so clear intent to abandon. what did the property owner do to evidence an intention to abandon the non-conforming use? >> there was just no exhibition at the end of the day of intent to use the space >> commissioner, i'm sorry, i'm going to challenge your interpretation of this reading. >> okay. >> and i'm going to base that on

the term "or." to prove discontinuance, you prove it via three basis that are listed here. one, whether it's been changedd to conforming use, the other is whether it's been discontinued for a period of three years or whether it's otherwise evident a clear intent on the part of the owner. so the way i read that, commissioner, is that within the three-year period, if for instance you decided in year two that you wanted to turn it into a bowling ally, per se, and you decided to remodel it as a bowling ally and at the end of year two on month 11 you decide the bowling ally is not going to work, i'm going to go back to the restaurant use, i believe that's how i read that passage. it's a matter of interpretation but i think it's consistent with the other three points and the terms or. >> i think that's reasonable.

but the phrase otherwise evident that gets me. i mean i think that the planning code is trying to do is to be fair to property owners by saying if you own a piece of property and it had a non-conforming use, we don't just take that away without there being a good reason. and one reason might be that you've chosen to operate it in a different way and another reason might be that you have discontinued it for three years which we take as evidence of an intention to abandon. but an intention to abandon has to be there. we don't take it away by accident. >> but again, commissioner, the passage here pertains to the definition of discontinuance, and there's three ways to satisfy that definition. again is if you changed the non-conforming to conforming use therefore you have abandoned the non-conforming. two is you don't continue the nonconforming within three years and number three is if you show a clear intent of not wanting to

continue the non-conformance, hence the bowling ally scenario. i think we are arguing over definition number two, whether there's been a discontinuance for a continuous period of three years. and that gets into that other conversation about what proves a discontinuance, and i think in this situation we are relying on this argument that it's based on this idea of whatever ernest prosecution. >> diligent prosecution. >> that's helpful. thank you. >> thank you. if you can be seated. we will now hear from mr. kaplan mr. kaplan. >> thank you. on behalf of the property owner. i don't think we are disagrees on either the facts or law. we had a legal nonconforming use in operation till december 31, 2014. within the next three years, remodeling was initiated for the restaurant on both floors to

commissioner's point, it had not been converted to a principle use, to a permitted use. it hasn't been discontinued for three years based upon a 1967 zoning administrator interpretation that has been this is applied on a daily if not weekly basis based on the way mr. sanchez is playing it. i send letters of determination all the time using this rule about what is three years and when is it an intent to abandon, what had to happen in the three years. so yes, it is interpretation but it is a broadly applied interpretation. and then otherwise clear intent, we've got a restaurant that got signed off on today that has employees ready to be trained over the next 60 days to operate a restaurant on the fifth and sixth floor. i don't know what else is more of a clear intent to operate a restaurant on these two floors. i think it would be pretty poor

precedent to start using zoning administrator letter to determination for appeals, opening up another past. especially when it's questioning the legal interpretation of the planning code, not to say there aren't legitimate times to question that but as a means of achieving other policy, it's really not an appropriate pathway. so with that, i did want to respond to commissioner tanner and commissioner honda, commissioner tanner, we don't have anyone here from the project team today that was involved in conversations. i can't even say if there were conversations but mr. yee was present at the first hearing, and he was ready to be present at the second hearing, unfortunately he's not here tonight. commissioner honda, with respect to the three permits, i have them here. the contractor, dpw mechanical on two of them and ed sop fire extinguisher company -- edison

fire extinguisher company on the third. and you won't see any reference of the fifth floor on the description of the permits and we are not saying you will but to respond to that question. so thank you and we are here if you have any questions. >> what are you using the fifth floor for? >> for other dining area for the restaurant >> tables for diners? so in six months if i want to eat at this restaurant i might be seated on the fifth floor? >> yes >> so were you able to locate the original permit application? >> what i have is the print out of the permit. >> i saw that from your brief. what i'm looking for is a specific permit application because it indicates at that point what you are actually applying for. >> this does have the exact same description. >> it's a little different than when someone fills it out and when someone interprets it. >> yeah, we've got that. >> did you find out who was the general contractor and did they hire any facilitation people

from the audience mentioned a couple names >> c.p.w. mechanical on two of them and edison fire extinguisher company on the third. >> did your client hire walter wong as someone indicated here? >> i don't know the answer to that. >> okay. thank you. >> thank you. we will now hear from the planning department. >> thank you. scott sanchez, planning department. so to sum up what you we have here, we have a letter of discrimination we believe has been properly issued. this is not the first question about this property, especially since it changed owners and after the restaurant closed down, and actually we've been in communication with u.c.d. since the beginning since we had our first letters of determination and they asked for copies of that. so there's been communication. they've been aware of what's going on. i don't know why an appeal

wasn't filed on that clear permit to do the t.i. for the restaurant. we don't regulate how many michelin stars a restaurant has. i mean and certainly there's a level-of-discretion that can be had when reviewing matters but this is not a change of use. this is an existing restaurant use. we don't regulate what menu they offer, how many stars they are. other than what the department of public health does for the health quality, making sure the food doesn't make people sick, but there's nothing that can be done through our process. i appreciate the concerns for the neighbors that it may not be seen as neighborhood-serving but that's not regulated in the planning code. we don't regulate menus or price points or how many michelin stars they may have. i appreciate the clarification about what is right versus the rules because we have to follow the rules and that's what we did here to be fair and consistent. if you don't do that, you have what's been in the papers for

the past few weeks. i take offense to what's been said by several members of the public about how we should be doing our jobs. we need to follow the rules, we need to be fair and consistent. i think when you have especially staff taking great levels of discretion, there can be more concern. we are very concerned about having a fair process, and that's why when they asked for copies of the letter of determination, we sent it to them. we are fair and open, transparent. this permit was issued in 2017, no appeals filed. there are processes. there can be d.b.n.s on properties. they are well aware of these. so i have concerns about this letter of determination and use for this kind of -- it should be dealt up front. it's horrible to hear that negotiations may have failed with the property owner and that we are not going to get imminently something that's going to be community-serving.

the better thing would be to appeal the permit early on. i'm hearing from the permit holder tonight that both floors are being used. so it sounds like they didn't state it on the record but i would assume if they are using the space they have a lease for the entire space. we have always used this as one space in separate floors. it's been operated by one operator for some time. and so we believe it is probably one use, and the letter of determination was properly issued. >> mr. sanchez, just as in the last case when the appellants mentioned that the permit holders had circumvented the permit system and it's either code compliant or not. however they used the l.o.d. and how you are saying it's manipulated. either you can do it or you can't do it. i mean, it's the same rule that applies to the previous.

>> we shoe issued the letter of -- we issued the letter of determination >> they said they circumvented the permit law to squeeze their fourth story in. the same thing. either youanr can't do it. >> the letter of determination, it's not -- you know, there are concerns about the permit. it doesn't suspend the permits that have been issued. they've got their final today. this is so disconnected from the actual permit process. yes, it's something that exists. >> i get it. it's a home run shot to try to get something for the community. >> and i mean we issued the letter, we are obligated to respond and answer the questions but if this is a precedence for future cases, nothing will ever die. you can come back -- how far can you come back in the future and challenge code compliance of something? >> we all need jobs >> is the v.a. required -- you

have made me curious, you are criticizing them for using the process but do they have a right to obtaining a letter of determination? >> under planning code, it says the zoning administrator shall respond to written request, and i can tell that's not your favorite provision of the plan >> it's a great tool for people to get answers to questions. i just think when it relates so directly to an actual project, the project should have been appealed. and the original letter of determination request, there was no statement about this being two separate spaces. there was no argument about being two separate spaces. we responded to what we were given. if everything from the original request was it's a restaurant on the fifth and sixth floor -- >> i got it. >> a more substantive question, one thing that has always irked me about this case is that generally in the planning code, and we talked to you about this all the time, planning code pushes toward getting rid of

non-conforming uses, flight and there are tons of different red lines that you can cross, and you cross that line and boom, your non-conforming use is gone because generally we want the way we plan to be in effect in the city. now what i just said is actually in no way helpful to the community for the reasons that other people have said. but i find this provision of the planning code interesting. to me it seems to set up a default that makes it hard to lose a non-conforming use. do you have any sort of context that you can provide as to why this code section is sort of approaching it from such a different angle? >> i think because it's a non-conforming use now but it was allowed when it was constructed so at what point can you take that right away from someone. this is a safety -- >> transfer of ownership, you could do it then. >> we would have to, i think the city attorney's office may have some concerns about that. >> tobacco companies are

doing -- i mean -- >> anyway. >> this has been a long-standing practice. there used to be some provisions that were tied to the construction type of a building so if you had a non-conforming use you would have to vest it. so if you had a wood-framed building 20 years, if you had concrete construction it could be 50 years. so they had some of those provisions. so there are various requirements. but the code generally now allows it to continue on. unless it meets one of the requirements or it's abandoned or changed to another use. >> so could you explain to the public, ourselves, as we move into the decision round and as we take action on this? so if we find for the appellant, what happens? >> we would discuss with the

city attorney's office what the implications of that would be, and certainly if the determination -- depends on i guess the board say that both the fifth and sixth floors have been abandoned then we would seek revocation of the permits. if the board says that the sixth floor is okay and the fifth floor is not, we have to make it clear to the tenant that they couldn't then operate at that fifth floor level and doing so would be a violation of the planning code. i mean, there's nothing that would obligate them to change it to a conforming use, they just couldn't use it as a use that would violate the planning code. >> so if we uphold the appeal, then it's a lose-lose situation. the permit holder loses the right to use that space as a

restaurant, and the community loses the right to use it as a restaurant. >> yeah. if the board decides the restaurant use has been abandoned then nobody can use it for banquet or restaurant facility. >> then it goes back into the hopper and god knows what it could be, it could be a conforming use which would be. >> office space, housing, massage. >> a bowling ally or whatever. >> it could be vacant >> so i'm saying that the risk to the community here is if the community wins, the appeal is up held, you win, you lose. all right? and that banquet hall is gone forever. and if the letter of determination is up held, then the permit holder goes along their merry way and operates the building according to the best

way they feel they can make a buck. >> it would be a restaurant use as it's been permitted for decades. >> right. and at least the space exists and there can be further negotiation if the community decides that they are going to do a boycott of the restaurant, that's really not good for business. so, okay. but so the upholding the appeal is a lose/lose situation, that's the bottom line. >> it doesn't do anything to preserve the restaurant fifth floor. >> isn't there another problem in commissioner swig's hypothetical, because if we say that this non-conforming use was discontinued or abandoned, and then the community and property owner negotiate a deal where they are going to operate a restaurant on the sixth floor and banquet hall on the fifth floor and come to the planning

department and say they didn't want a c.u. so they can have -- >> it requires legislation. >> so the community's asking us to hold that there cannot be a restaurant in this space so that they can then negotiate a deal where they ask the legislature to pass a law that permits them to operate a restaurant in this space. >> unless they have six out of the 11 standing supervisors who support that. >> i think -- i'm not trying to get into politics, i'm trying to get into the oddity. it's a pure -- i mean, and that's what they've said, and i understand the community is using every tool in the toolbox but this is purely about negotiating with the property owner. it's unrelated to the legal merits. at the end of this if they win tonight they are going to ask the board of supervisors to essentially overturn what they are asking us to do. >> and in my conversation with the appellants earlier today it sounds like some of the other uses that may be allowed within the current framework like institutional uses on the fifth

floor may be acceptable to them but that would not -- the banquet space is -- >> there's not going to be food there. >> no >> so yes, that's the outcome. >> okay. >> i have a question -- sorry. are there other questions? i have one and i don't know whether i might ask my fellow commissioners as a lawyer or city attorney but the vested right question based on the permits, does that go away if we were to overturn the l.o.d. or do they have legal avenues to pursue this beyond tonight? >> i think that the issue is somewhat resolved by the fact that the community is not asking for -- only asking with respect to the fifth floor which there apparently has been no work done under any permit so the vested question isn't as important. but if they were to raise that issue, if the board were to

overturn, and yes that could lead to legal liability. >> thank you. commissioners, this matter is submitted. >> may i start, please? so there are a whole bunch of -- i think we have all discussed we are not going to break the rules. we can't. it's the legal issues that we are going to consider. there are some holes here. i wish mr. duffy had not left. i wish d.w.i. were here to comment -- d.b.i. were here to comment on a inspection that included the fifth floor to see that there wasn't a notice of violation. i wish that that planning had gone to the fifth floor and reviewed just walked in here and beyond a reasonable doubt told us that they had -- they were comfortable that everything that was represented by the building owner had been done properly and

there wasn't any monkey business whatsoever. on that, that's something i'm going to go towards a continuance, because i think that there are some open-ended issues. i would like to see, for example, that there's proof of one lease and that it's one space. i'd like to see fulfillment of mr. honda's, commissioner honda's request for the original building permit. so there's a couple chores out there that i think should be done before we move forward and rule on this according to the rule of law. and this would also give us one more opportunity for the community and the building owner to have a final conversation. having been, again, redundantly, in the hospitality business, if the community is going to be this upset, your clients,

mr. ruben, your clients are going to go out of business. your client is going to lose millions of dollars. your client is going to have a horrible reputation in and his restaurant is going to be subject to significant impact from the community. and i would hope the community might take that into consideration. that might be inappropriate to say. sorry. but that's the risk. the community, i can fully see with the fervor and passion that exists in this room today that the community is just not going to stand down and let this restaurant open on the fifth and sixth floor without community commentary, shall we say. so there's the opportunity to further have a conversation. i would highly recommend that during the continuance period which i'm going to ask for that maybe this would be a concern. with the community, understand also, and that's why i asked the question, if you are going to

play a lose/lose game, you are going to lose. because you are going to lose. and you are not going to have the banquet hall which is so important to the community which is so important to the legacy, the history and what is elegant about chinatown. do you really want to play this lose/lose game? so there's some big things at steak here, and i would recommend that asimov as -- as e based on the request, mr. sanchez, that both parties consider the risk, the support of the community and does the community want to play a lose/lose game. so i would suggest we take a continuance to let m. sanchez fulfill a couple requests i'm makeing and commissioner honda is making. >> i would potentially support that. after reviewing the brief, we

don't have l.o.d.'s letter of determinations before this body that often. and generally do they take the time and space that we have taken for this particular case this evening. but by the turnout of the public that's here, evidently we know that this is quite an important situation. after reviewing the brief, i too was bothered. simple fact is, again, i've been in this public space for at least 40 years, at least. i can't remember how many weddings, how many banquets that i've attended at this particular thing. and at this particular venue. the fact is that they are two very, very separate spaces. and after reviewing the brief, i was quite bothered how it was put out and the that's correct that if we get one permit we are kind of good for the other and they are good together. no, i think that specifically it should have been named,

especially when you have a highly contested property that is non-conforming. then you would for sure assure that you had no non-conforming issues going forward. i would like to deny the l.o.d., but at this particular time, i don't evidently have the vote. but how long are we talking about? >> as short as possible. as short as reasonable. i forgot to say one thing, i'm sorry. you know, the word michelin star has been thrown around. do you know the qualifications of getting a michelin star? >> no permits, evidently >> do you know the qualifications of getting a michelin star? it's very, very hard. so the fact that there were no permit, anything done on the fifth floor, you aren't going to get a michelin star. >> they never said they were getting a michelin star. >> i just want to put it out

there. >> can i continue my question, mr. sanchez, i have a question for you. i was just looking at the l.o.d. again. it sounds like there really is a focus from some of the commissioners on this board on this question of is there a way of characterizing five and six as separate or not. i didn't hear you actually directly address that question of how does section 183 and the use of the word "use," how does that interact with sometimes people have, you know, multiple unions that are t.i. c., that are condos, multiple floors that are then leased separately. are there any rules, is there anything in the code, does the planning department -- because the letter of determination doesn't get into that. >> that wasn't requested. the appellant didn't put that out there. the original request was simply

we believe that they refer to a singular restaurant on the fifth and sixth floors. >> they didn't originally argue that is what you are saying? >> no >> can you help me understand what the planning department does when somebody says this, when it comes up? >> we would generally how the space has historically been used, if it's been used as one space by one operator, as long as at least one portion of that space was being used, or there was very clear there was no intent to abandon at least a portion of it through this permitting, that would be sufficient, like i said, we don't require a permit for every square foot of the space. because it may be the case where someone needs to do a seismic upgrade only one small portion and it may be closed for some period of time. and we wouldn't look at that to be necessarily an abandonment if they are doing work on one part but they may prohibit -- >> the allegation which is not proven in the evidence before us, and i never had the

opportunity to attend a banquet at the empress of china unfortunately but the allegation is the empress operated floor six as a restaurant and floor five as a banquet hall and the only thing that connected them was a bathroom. >> elevator and emergency -- >> other things that connect them but in terms of the flow, people might go to six and might come to five or whatever. and the allegation, again, also, is that no work happened on five by the new tenant until after the three years had elapsed, that is focused on six, they are fixing up six but didn't have an intent to use five for their restaurant in a way that integrates them. so in that situation, are you looking at the historical empress of china use or the new intention? >> we would look at i think in this case and how we have applied it is historically it's

operated as a single tenant, single use, albeit it on two floors, and they have a permit for work on that sixth floor, the work that they said is done or has been done on the fifth floor doesn't need a permit. but there have been no evidence they intended to abandon the fifth floor. i think that just because a permit may not have been required for that work, and certainly through this hearing process -- >> i'm sorry, but you are saying, i want to know what the policy is. is there a policy? >> we don't have a policy. >> let's say the empress of china had two separate restaurants but they share a bathroom because there's one bathroom on one floor. i've been to places like that. >> every hotel is like that. they have restaurants and then they have banquet rooms and the customers share it all. >> is there a policy that would dictate the result in that situation? >> yeah, there were two separate entities and operators >> they share an elevator, a

bathroom. >> but they are operated by separate businesses, separate leases, not as one. >> no, same entity just two restaurants. >> under the planning code that's two uses. >> two uses. >> it would be two restaurant uses if you have two operators on two floors that would be two uses but if you had one operator. we do this with u size. so if you have a use that just because you are maybe 5,000 square feet on each floor but if you are one operator operating both spaces we would look at that as 10,000 square feet. we are looking at the aggregate of that user and how they are using that space. >> so it's the number of operators that matters >> yeah. >> the empress operated two separate restaurants but one operator. >> no, if it had two -- this is all -- >> this is pretty important, mr. i just want to make sure -- i mean, if you need time to investigate my question, that's fine. but i want to make sure you are giving me an accurate answer.

>> i want to respond. >> if one business entity has two floors and floor six is restaurant a and floor five is restaurant b. restaurant a is american food, restaurant b is italian food, they share a bathroom and elevator and dumbwaiter, how does the planning department treat that? one use or two? >> these are all arguments and questions that were raised in the original letter of determination: these are new questions tonight. generally remediationly on the operator. so -- generally we rely on the operator. we would look at the operator, one operator operating that space, whether they have different kinds of cuisines, we would look at it as one restaurant use. >> if it's two leases but the same operator signed both? you get what i'm saying. there needs to be a rule and it sounds like you are saying there is no rule. that you look at it and figure

out how you feel about it. because that changes the view of the case because that means i can look at it and see what i feel about it. >> i'm happy to continue this. i didn't draft the letter of determination request but i can consult with the zoning administrator who did and take this additional information and see if that maintains their determination. but historically we would look at the operator. so if you have one lease for 10,000 square feet, whether you have different kinds of cuisine in that space, that's one restaurant use, that's 10,000 square feet. this has never been -- we have never considered this to be two separate restaurant uses because there's a use size issue where the use sizes are limited. nothing can be larger than 5,000 square feet. so we do -- the use size is an important consideration. and they wouldn't be able to merge the spaces again in the future. >> but in actuality, having been there many times, it is almost two separate uses. because the restaurant use is

entirely separate from the banquet use. there's none that usually combine the two. except in the '70s and '40s during their heydays when big weddings were there and it went from one to two but generally it's one or the other. >> commissioners, i don't think hypothetical conversations about how the planning department would or wouldn't adjudicate something different is relevant and maybe we can find out if the continuance is supported, perhaps there are questions that can be asked but it is important to think about what the determination requester asked. but this hypothetical things are i think not relevant. i'm prepared to support the continuance. we need to figure out a date and find out what that is if there's enough votes for that but i don't know if engaging in this back and forth is not illuminating any further details. >> i find it relevant and my vote is going to depend on

parton understanding how the planning department addresses this. >> i don't see how the idea of how if there were two restaurants, that's not even what is being proposed. how answering a question about a hypothetical two restaurants, one operator scenario is relevant to understanding how this letter of determination is written. >> i understand that -- >> because there needs to be a rule. if there's no rule then the planning department is using its discretion. >> but that's how public service happens. we have discretion as a member of public service in my day job, that is what we do, we have rules written by the legislature, we take the rules which sometimes do a great job organizing specific rules about what can be approved and not approved in chinatown. in fact that's part of the issue here is regarding what can be approved above the second floor. so that's one reason why if this l.o.d. is overturned why the banquet would require special legislation to create another rule that would allow this use

to be there. so i think it could be illustrative to get the information but i think the idea that if everything isn't prescribed in some specific rule that that's somehow not good public service and i think that is now how planning works. >> you misunderstood the point. what i want to understand is whether there is a rule. if so we should evaluate whether the rule is followed. if it's just in their discretion, that's fine. i want to know what factors they take into account. are they looking only at the historical way the space is used or only looking at the way the new owner intends to use it. for example if it's two floors that are leased separately to separate restaurants and these guys come in and they buy both floors, and there's a stairwell that connects them and there's a bathroom, and they say, well, our intention is to use both restaurants as one restaurant, but they only need to remodel floor six, how does that situation work out? it seems to me quite important to understand how this statute works to know what happens when

you have this question of is it one use or multiple uses. >> i disagree but that's fine. i just want to see if we are going to continuance i would suggest we move to the continuance and we can finish our other business this evening unless you want to conclude this. >> i don't think it's part of our discussion, with all due respect, commissioner, because -- >> let's move to the continuance. >> but let me finish for a second. there are many, many restaurants bifurcate the restaurants periodically for competitive reasons in the city, and they bifurcate them to have a little coffee shop in the storefront area, and it's the same restaurant, the same owner, the same kitchen but for the good of the business, because they want to do more business and stay in business they bifurcate the restaurant and they have fast food in the front and big food in the back. and i think we are getting into

the swamp really deeply on this discussion. and this is a -- i think we should stay to the letter of determination and get some other facts that have been brought up here. >> is there a motion? >> the motion. >> to what we are asking for during the continuance. >> yes. a motion to continue for the purpose of clarification on key issues related to making a legal decision on this, the question of the letter of determination. >> and the question is to clarify is i believe you asked the leases >> the original filing of the original. >> original copy of the permit application. also i would like to throw in there that the owner show up here at the next point and to indicate who is in the process of -- >> and the final one was a walk

through by either d.b.i. or by planning to confirm that exactly the scope that the improvements have -- >> because in the briefs it only indicated one floor. it was absent completely of any pictures. >> let me finish. to ascertain the improvements made were according to the plans submitted and that -- and identify if any other improvements were made that were not necessarily part of the permit on the fifth floor especially. >> you lost me on that one. that is about the permits which are not the subject of this hearing. i am not going to ask d.b.i. to do something that is not relevant to this issue. just saying. >> then i'll drop that issue. but i'd like -- let me rephrase

that. i would like either d.b.i. or planning to go out and survey the property to confirm the elements represented in the letter of determination. how is that? >> yes. >> i agree. >> didn't you also want something related to evidence of when work began on the fifth floor to what extent or what the plans were? is that part of what you were considering? >> yep. that's perfect. did you want clarification with regards to the language for item one? >> i would like an explanation. doesn't have to be in this order but mr. sanchez noted i would like an explanation as to what factors are considered in planning to determine when somebody says it's multiple use, whether or not it's multiple uses. >> is that part of your motion? just clarifying. >> i love joint motions. i wasn't adding it to the motion. >> it should be added to the motion if you want that.

>> can we discuss dates? >> yeah. and also i would like to bring up as we move forward here. >> coffee and wine. >> that we have a restaurant owner that may have complied to the law that has a valid permit that has had a sign off on this permit that has submitted probably hundreds of thousands if not millions of dollars invested in this space and regardless of how we feel on this socially, politically or economically, or legally, that we may be causing grievous harm to the permit holder by moving this out too far. so let's, as we are showing community compassion, which i really want to do, let's also show some understanding and empathy and compassion to the investor in the building. >> the other issue is we would need the department to do a site visit and unfortunately the representative for the site visit is no longer in our presence. >> yeah. so a couple weeks. >> i would want this to be as quickly as possible. >> i did communicate with the

building inspector joe duffy, and sounds like we can do a site visit the week after next >> so the planning department won't be available april 1 and april 8 we have a full calendar. so that leaves april 15, we have seven items. we can put it on april 15. >> we have to allow -- >> any way the commissioners could be present on the eighth? >> we need a full calendar. >> the first, sorry, the first >> we are both scheduled to be away. >> no invitation? >> neither of you leafing the country. but the next hearing is going to be too soon. that's where we are. >> why don't we do it on the 15th with minimal testimony from both parties. and i guess we have to have some level of public comment or not?

>> yes. >> so minimal testimony from both parties. >> minutes each and are we going to require any briefing in advance or no? >> i don't think we need any -- do we need a brief? we need a supplementary brief from the city do we not? >> you are going to answer a question about multiple use. >> they have to supply that >> what would you like in advance in writing? do you want the plans in advance? >> if possible, findings from the city or their addressing of our questions tonight. >> basically plans from the permit holder. yeah. >> okay. so we have a motion -- >> hang on one second. >> there's probably more likely than not that you will not be out of town that week. so i mean -- >> which week. >> for april 1.

so if the board would want to continue it to that date, and if for some reason we can't, we'll do our best. >> that would be a good date because it's a lighter calendar. >> so maybe try 4/1 and if not, we can move it to the later date. >> i'm sure the project sponsor would love it. >> i'm sure opening a restaurant in the time that we are in now is not going to be a big hit in china right now anyway. >> that's not our issue either. we have a motion from commissioner swig to continue this matter to april 1. uh-oh. for the purpose -- for one clarification on issues related to the questions raised at the hearing. number one, we would like the original permit application. number two, that the owner appear at the next hearing. number three, we would like the site inspection by d.b.i. or planning or both to confirm the

elements in the l.o.d. and also number four, evidence as to when work began on the fifth floor, and number five, that we would like the planning department to explain the factors considered when determining whether or not there are multiple uses in the facility. is that correct? >> you have the original permit application on file? >> yes, i do. you could talk to the zoning administrator. so we have this motion. >> the lease -- i asked for the lease to be proof that there is a lease. >> you want the lease to be included? okay. and a copy of the lease. so what do we want in advance for clarity? the lease, the plans. are we going to allow briefing or -- >> we want the lease, we want the original permit application. i'm losing it. >> original permit application,

the leases of the property -- >> we could say any documents supporting the elements that i set forth. and they have to be submitted the thursday prior to the hearing. >> there we go. >> okay. so on that motion,. [roll call vote] that motion carries and we'll see you april 1. >> with apologies to the last appellant, we are going to take a 10 >> good evening and welcome back to the march 11, 2020 meeting of the san francisco board of appeals. we are now on item number 6, this is appeal number 20-007,

levy and dallendorfer versus the zoning administrator. a notice of violation subject property is in violation of planning code section 317 for the removal of a residential unit through an unauthorized residential merger. a communicating door was installed connecting the living rooms of unions four and five and the cooking facilities in unit five were removed, exceeding the scope of building permit no. 201607011459. a conditional use authorization is required for a residential merger. we will hear from the appellants first. >> i want to apologize and thank everyone for being so patient, especially the cutie right there. [laughter] >> thank you very much, commissioners. i appreciate your time tonight as well. i'm ryan patterson representing the appellants. commissioners, this is an

unusual appeal tonight. i'm here pro bono for reasons you'll see shortly. this appeal unlike the last matter of great significance to the city is of great significance to a family. this is about a door between two t.i. c. units and the door predates claudia moving in as a tenant 20 years ago, it predates section 17, the merger requirement, conditional use requirement. the door between the two units is necessary, because this family has two children. it's a two, one-bedroom apartments linked by a door. if that door is forced to be closed they will be living in separate apartment from their children. i'll let the family speak. >> good evening and welcome. >> good evening, commissioner. i would like to explain shortly our story. claudia and myself are together

since 2002 since we were living together in this small one-bedroom apartment and especially since the birth of our first kid. we started to look around for places with small space. we were visiting houses and apartments in various places of the city and all around the bay. so when the opportunity came to us to buy the top floor of where we were already living, it certainly unlocked many things. our apartment four and five were already connected by an existing door. so it made quite some sense for our family of four. so with some inheritance money and with the help of both our families in europe, we could make it possible to buy that t.i. c., that's what we did.

in 2016, our kids were ten and four, we made the purchase,

four, we made the purchase, and i drew the plans to upgrade one of the kitchen. we removed one of the kitchens to make more room so both kids can have their own room. and as parents we have our own space a little bit like a loft. claudia and i sleep in this space. to us this is also something that seemed logic. we kept the pipe inside the wall so there has been nothing permanently removed.

as an art teacher at san francisco state, i make about $3,000 a month, and claudia when she is hired by her art school as a lecturer makes about $4,000. beside our regular taxes we pay around $10,000 of property taxes per year. therefore i hope this commission will help us. thank you. >> thank you. merci. >> good evening. my name is claudia. i want to confirm that the connecting door was here when i moved into the apartment on september 11, 2001. lived in the other apartment and when he was not home, he let us use both apartments to have a bit more space for our family. so our living situation worked

for us because of this single door. so here i brought a very old picture where you can see the door. >> a www. >> the whole thing started because we applied for a short-term rental license. we were trying to make ends meet and were taking in roommates from airbnb several years ago with the license and occasionally renting the apartment 6 down the hall. but this completely stops some time ago. so apartment 6 is only a long-term tenants and only our family is occupying apartment 4 and 5. so we are struggling to remain in san francisco as a family of public school art teachers. if you force us to close up the preexisting 20-year-old doorway linking us with our children, i

don't know how we are going to stay in the city. so thank you. >> thank you. >> i was asked to take a look at the door. i reviewed the permit history and city records for 15th street units 4, 5 and 6 and conducted an inspection in october. based on inspection and the type of integrated door hinge and the time of how the door was helping you and the installation technique in my professional opinion was done in the late 1990s. it could have been ten years earlier but it's about 1995, '98. it could have been a replacement door to an earlier door. could have been an opening. but the door clearly was not installed in 2000. >> thank you. >> thank you. >> he is doing this pro bono, are you also doing this pro bono

bono? thank you. >> we will now hear from the planning department. >> thank you. scott sanchez, planning department. subject property located within an rh-3 zoning district, built in 1961 and contains six separate and distinct dwelling units. in this case, the questions and notice violation relate to the units on the third floor have -- let me put on the overhead, plans from 2016 remodel which show an issue. there is an opening between the two units here. this is unit 6 at the end of the corridor. as you can see very clearly doesn't show the opening which the property owner that the owner has admitted that they didn't include it on there because they knew it wouldn't have been allowed.

also this work shows remodel of both the kitchens but they've also stated they removed one of the kitchens. obviously this permit was obtained under false pretenses but inaccurate information to the city. this was in 2016, the same year they obtain aid short-term rental certificate for unit 4. then subsequently i think it was 2018 they sought one for unit 6 at the end of the hall. it's our understanding that around this time they were using all three units basically as one. and that actually in the denial of the certificate for unit 6, it was stated that doesn't meet the requirements for the short-term rental because they are not the primary residents of that unit. they just merged the spaces. but it appeared to be used as an office area.

at that time, there was also shortly after this, this was in january 2018, in july of 2018, the certificate for unit 4 was revoked because the issue about the units being merged, looking through some of the materials at this time and there are more than 140 reviews between 2013 and 2018 on airbnb so it was used fairly heavily, in some cases they were there as hosts and other cases they may have been gone. but in terms of the revocation, the revocation was based on review of information from the hosting platform, occupancy and availability metrics, it appears they do not reside in the same individual dwelling unit at least 275 nights per year being used for short-term rentals and have exceeded over 90 nights of unhosted short-term rentals in the last year for unit 4. it appears the space being used

was apportioned as a separate dwelling unit which was illegally merged, a reference to the enforcement case, into another dwelling unit. under the planning code, communicating opening between two dwelling units is merger of units as testified by the appellant team. there's the permit to authorize this where one would have been required. one cannot be approved now to legalize the situation. they can go through the conditional use authorization process, seek approval from the planning commission. that's the appropriate process. i had a conversation with them today where we discussed what that might look like and whether penalties would be assessed during that time. and i stated and i'll state to the board if they get a application within 30 days and diligently pursue that then penalties would not be accruing. and they would have to work diligently on that and abide by the decision of the planning commission. but again, what we have here i

think is very clear, they understand that the door is not allowed, they didn't show it on the 2016 plans. it's an illegal opening between the two units. it is a unit merger under the planning code. they don't have conditional use authorization. and now they are in violation and they need to go through the process to legalize this. this is just a very clear implementation of the rules. >> are you done? >> yeah. >> if the door was a pre-existing condition does that change whether it's a violation? >> if it was established at a time when such door would have been legally allowed then yes, it would be allowed although they are still in violation of the permit which shows no door there and also shows a kitchen being remodeled and the kitchen is not there so they are in violation of the permit. >> this notice of violation is just about the door, not about at