>> president darrell honda will be presiding officer and he is joined by eduardo santacana, an lazarus, rick swig and tina chang and also brad russy will provide the board of any needed legal advice.

at the controls of the board legal clerk, alex long way and i'm julie rosenburg. we'll also be joined by representatives from the city departments that will present before the board this evening. scott sanchez and joseph, acting deputy director of the san francisco department of building inspection. the board meeting guidelines are as follows. the board requests you turn off our silence all phones so they will not disturbing the proceedings. rules of presentations are, the appellants, each are given seven minutes to present and three minutes for rebuttal. people must include their comments within the seven or three-minute periods. members of the public who are not affiliated with the parties, may have up to three minutes each to address the board and no rebut the many. time may be limited depending on the calender.

four votes are required to grant an appeal or modify a permit or determination. and if you have questions about requesting a rehearing, the board rules or hearing schedules, e-mail board staff at sfgov.org. public access and participation of important to the board and every everyday has been made to replication the in-person process. to enable public participation, they are broadcasting and streaming this hearing live and we'll have the ability to receive public comment for each item on today's agenda and where providing captions. go to channel 78. please, note, it will be rebroadcast on fridays at 4:00 p.m. on channel 26. a link to the livestream is found on the home page of our website. public comment can be provide inside two days. one, join the zoom meeting by computer. go to our website and click on

the zoom link. and ones again sf gov tv is broadcasting and streaming across the bottom of the screen if you are watching a livestream or broadcast. when you call into block your number, dial star 67 and then the phone number. listen for your item to be called and dial star 9 which is equivalent of raising your hand so we know you want to speak and you will be brought into the hearing when it is your turn. you will have three minutes. again, our legal clerk will give you a 30 second warning before your time is up. please note there's a delay between the live proceedings and what is broadcast in live streamed on tv and the internet. it's very important that people calling in reduced or turn off the volume on their tv or computers otherwise there's interference with the meeting. if any of the participants or attendees meet a disability

accommodation, make a request in the chat function to the board's legal clerk or send an e-mail. the chat function cannot be used to provide public comment or opinions. now, we will swear in affirm all those who intend to testify. please note that any member of the public may speak, without taking an oath pursuant to their rights under the sunshine ordinance. if you testify at any of tonight's proceedings, and wish to have the board give your testimony weight, raise your right hand and say i do after you've been sworn in or affirmed. do you swear or affirm the testify will be the truth, the whole truth and nothing but the truth? >> i do. >> thank you. if you are participant and you are not speaking, put your zoom speaker on mute. we're moving on to item number 1, which is general public comment. this is an opportunity for anyone who would like to speak on a matter within the board's jurisdiction but that is not on tonight's calender. is there anyone here for general

public comment? i don't see any hands raised. we'll move on to item number 2. commissioner comments and questions. >> president honda: unless anyone has a comment or a suggestion for the minutes, can i have a motion to accept those? >> we're on item 2. >> president honda: sorry. i gotta head of myself. >> you are eager to get going. any commissioner comments or questions? so we'll move on to item number 3. commissioners, before you for your consideration are the draft minutes for the february 10th, 2021 meeting. >> i'll ditto what i said, does anyone have a motion. >> i motion to approve. >> is there any public comment on commissioner swig's motion to adopt those minutes? please, raise your hand. seeing there's no public comment on that motion to adopt the minutes, vice president santacana. >> aye.

>> commissioner lass russ. laza. >> aye. >> honda. >> aye. >> commissioner chang. >> aye. >> thank you, the minutes are adopted 5-0. we will now move on to item number 4 and this is joel tomei subject property 172 21st avenue. appealing the issuance on september 16th, 2020 of ralph chapinto demolish the rear deck and stairs and the reduced footprint. the proposed landing and stairs will extent 6'11" from the rear building. the subject property and required to maintain a year yard of approximately 28 feet which is the average depth of the rear building walls of two adjacent buildings. the existing deck and stairs are located within the required rear yard. the proposed landing and stairs would result in a smaller footprint but also would be located in the required rear yard and therefore a rear yard

variance is required and the zoning administrator granted the variance. this is case number 2018-007914. they continued this matter to february 17th, 2021 so the determination share the revised with the plans at 178th 21st stt property and they impact the neighbor's party and the board executive director and the deputy voting administrator can modify as needed if the revised plans are adopted by the board. we will go ahead and hear from the appellant first. mr. joel tomei. you have three minutes, sir. we can't hear you. we heard you before but now we can't. >> can you hear me now? >> yes. >> i just want to clarification,

has chris joined the video? >> the architect? >> yes, he is here. >> ok. basically, i wanted to get a clarification from you and i don't need to go what i went through in january, is that right? otherwise i went ahead and described exactly my position as the appellant and presented that and chris presented the plan and we were asked to come back after a meeting, possibly meeting with the property owners adjacent of the 178 21st. is that the basic subject, 178 21st? >> that's correct. this is your opportunity to say something about that. >> i was in contact with chris sullivan and i think he is the one that's been pursuing this. he is going to have to explain the status of that. >> ok. >> you are finished? thank you. >> yes, ma'am.

>> we can go on to mr. sullivan. >> yes. this is chris sullivan, the architect who is representing the owner at 172 21st avenue. i did reach out, or attempted to reach out to the neighbors at 178 21st avenue. i sent them a fedex package with the latest set of drawings. a letter explaining exactly what we were doing in terms of the rear yard deck and new stair configuration. i sent that january 20th, and following our meeting with the board january 15th and suggested they respond within

two weeks of that late. it put the response request february 4th. and i didn't hear anything from them. i also put a package on their doorstep and left it there, rang the bell, and i didn't hear anything from anyone. i did that following the february 4th deadline. i did it on february 8th. again, i haven't heard anything. so, i did attempt to contact the neighbors at 178 21st avenue and again, i haven't heard anything. >> ok. thank you. mr. sanchez, we will now hear from the planning department. >> thank you, scott sanchez planning department. the previous hearing, the zoning administrator stands behind the

variance decision letter that was issued for the project. we note this is a dinovo hearing and we appreciate the appellant and property owner have found a resolution here. it is not consistent with the variance decision letter so it would require the board to grant the appeal and adopt these revised plans the board feels that's is appropriate and work with the executive director on slightly modifying the findings for the variance decision letter. at the last hearing we did ask the project sponsor reach out to the adjacent property impacted. they have been very diligent in doing so and at least in their communications with us, keeping us apprised of their efforts to do so. it doesn't seem there's been any feedback from that neighbor. there would still be, after we

wanted tease out concerns before the variance is final. with that, we're available for questions noting again, it's a dinovo hearing and the board is hearing this variance anew and while the zoning administrator supported the original decision and still feels that's probably a slightly better option, we appreciate that they've worked on a resolution and defer to the board as to how to proceed with this matter. thank you. >> thank you, mr. sanchez, we'll hear from the building department. deputy director duffy, do you have anything to add? >> no, nothing to add. thank you. >> thank you. is there any public comment on this item? if so, please raise your hand. looks like we do not have any public comment so commissioners, this matter is submitted.

who would like to start? >> i can start. i think that given the neighbors have reached a resolution that seems acceptable to the planning department, even if they found the original approved plans is better, those most impacted have weighed in and agreed to a set of drawings and i think that we have good grounds to adopt the new plans. >> anyone else like to weigh in. >> i'd like to add zoning administrators direction should

we do what commissioner chang has recommended. where do we have to tweak the findings? >> think he said grant the appeal and modify the project asper the plans that were submitted. >> i did work with the executive director, there's a slight change to funding for -- which we provided so i think the board has probably the necessary changes to the findings. >> right, so you are comfortable with those so if we move forward, our reference in a motion would simply have some mention that which is been previously provided to the executive branch. >> yes, commissioner chang eloquently summarized the planning department's position on this. >> president honda: so unless we have any further deliberation, i am in agreement with commissioner chang and i'd like

to make that motion. >> sure. i move to uphold the appeal and adopt the modified plans as proposed. >> we would also need to adopt the draft findings. >> and adopt the draft findings. >> what is this motion? what's the basis of this motion? perhaps the findings are sufficient to grant the variance which required under planning code section 305? >> you did such a great job. >> is this your first motion? >> that's what i was thinking. [applause] >> i'm deciding on the basis of the findings they're positioned. >> you got your first motion, commissioner. >> so we have a information from commissioner chang to grant the appeal and issue the variance on the condition it be revised to require the plans dated january 6th, 2021. submitted by the determination

holder and the adoption of the draft findings submitted by the deputy zoning administrator on the basis these findings are sufficient to grant the variances required under planning code section 305c. on that motion, vice president santacana. >> aye. >> commissioner lazarus. >> aye. >> honda. >> aye. >> swig. >> aye. >> that motion carries 5-0. thank you. so we will now move on to item number 5. one moment here. item number 5 is appeal number 21-001 patricia cannon versus department building inspection subject property is 2634 octavia street. appealing the issuance on december 18th, 2020 to 2634 octavia homeowners association of an alternation permit and replacing fiery gres and stairs in kind due to significant dough

tieration and dry rot. no fire wall construction, demolish existing illegal deck at third story. this is permit 2020-09-03-3412 and we'll hear from the appellant first. mr. williams is here representing the appellant. >> thank you. good evening, president honda and members of the board. i'm steve williams. i represent the appellant, patricia cannon. she lives in a condominium at 2634 octavia street unit number 5. unit number 5 is one of the top floor units in the seven-unit building on octavia street. ms. cannon has lived in this unit for more than 30 years. it's the only home she's owned. she's retired. she lives on a fixed income. she lives alone having lost her partner about 15 years ago. her building has a small

homeowners association with sudden seven members to represent the seven units in the building and last year the h.o.a. determined the real stairway on the building which is the h.o.a. common area needed to be repaired or replaced and the h.o.a. obtained some bids for that work and ended up hiring an engineer of erc engineering was retained. for unknown and still unexplained reasons, the h.o.a. informed mr. yagmire, the deck for number 5 was quote-unquote illegal. mr. yagmire has refused to disclose where he obtained that erroneous member from which member of the h.o.a. whether it's from the president or some other member, he ended up submitting a permit application which has that false information on it.

they've now acknowledged it's false information. and it was submitted without msr approval and without a vote of the h.o.a. the permit application was submitted in september. the permit was issued in december of last year. i was contacted by ms. cannon in early november and after looking at her ownership, documents or deed, and the other h.o.a. documents, i contacted mr. yagmire and the h.o.a. president to request the permit with the false information be withdrawn, the false information is the claim that the deck is somehow illegal. which asked that it be withdrawn or amended. the h.o.a. refused my request and the permit was issued on december 18th of last year and we had no choice but to file this appeal.

in my brief, which i hope you had time to review, the public records and the permit history clearly established this decor if you've looked at it closely you'll see it's more of a large landing than an actual deck. whatever you want to call it, is legal i find a permit from 1951 that includes it in the description of work to repair the porch landings, the historic sand born map from 1913 to 1999 show the same stair configuration which continues out through the northern edge of the rear of the building structure. and i believe that this conclusively proves the deck for unit five was part of the original building. i have attached the entire certified sand born map report as exhibit four to my brief.

and as exhibit 5, if you can put up exhibit 5 for me. i enlarged and highlighted the configuration of the rear of the building from 1913 and 1999 to show the extension of the stair structure up to the northern -- keep going, alec. the extension of the stair structure that is large. you can see the stair structure comes out to the very northern edge of the building. these buildings face east and west and so the stair structure runs north and south. that same extension to the northern edge can be seen in the

original condominium maps filed in 1979, 1980, and can you keep scrolling through there to exhibit 6. this is the same sanborn map which shows the configuration from 1999 that shows it extending out to the northern edge. if we go to the next one, that's exhibit 6, please. scroll down a little bit. there. you see the arrow. you can see that the stair configuration meets the very northern edge of the building. you compare that same configuration to the historic maps and the condo maps and the configuration of the plans submitted by the engineer, can we go to the next exhibit 11, please. you will see that the existing

configuration, the deck stair structure matches the northern edge and scroll down just a little bit more, you will see exhibit b without the deck on the top floor it falls some six or eight or 10 feet short of the northern edge. i think conclusively we established that the stair structure, including the deck on the back floor goes to 1913. the original building was built in 1907 and they match. when you look at this and i think it's conclusive evidence of that. and so, it's clear that unit five had this as part of the

building. this is fundamental fairness. she purchased her home in 1990, 31 years ago with a specific easement granted to her and title to her unit includes her right to this exclusive easement of the deck and the common area for her deck. as said fourth in my appeal -->> 30 seconds. >> hopefully you had time to review. obviously it's part of the condominium approval process, there's an inspection process by d.b.i. and a c.f.c. issues for this building in 1980 with the deck and i also attach permits which show specific repairs on the deck and so, she should be entitled to have this deck and have it row constructed. the permit should be either amended or withdrawn by the

h.o.a. for something that a louse the reconstruction of the -- >> that's your time. >> with the repair or replacement of her deck, thank you. >> thank you mr. williams. commissioner chang has something that she would like to state for the record. >> executive director, julie, should i make that for the next item? >> i'm sorry, yes, the next item. >> thank you. >> no problem. >> we'll hear from the permit holder. >> hello, madam. i'm the president of the h.o.a. so, the reason to do the repairs is that the stairs are falling apart. working on the stairs and we tried to close it right now to

try and injuries and it's all the and engineers and there's no way to repair it. it's well beyond repair. we have to reconstruct from scratch. redo the concrete and wood and use different techniques. it wasn't done the modern way. basically we do everything from scratch. so, we have nothing against the deck by default, we had to rebuild in time with the deck so that's why the initial assumption and we talked to professionals and they told us well it's not easy because the stairs have to be (inaudible) but perhaps the deck is a variance or not. the appellant was more towards repairing instead of rebuilding to avoid this kind of problem. so at the end of the day, we tried to gather for months and months the h.o.a. and all

members of documents and talked with a lot of professionals, license professionals, engineers and contractors and we couldn't establish the deck was legal or not. so one thing that we grow with h appellant it should not be on the plan. we don't know how it got there, frankly, but we agree that it shouldn't be there and that's why we have a plan that is available and we ask to update the same plan that we submitted but without the (inaudible) just to make it clear the h.o.a. has month position in the legality because we have no idea and we couldn't find a way to determine that first. also, the engineer proposed the plan without the deck because he says that there was no way for her to get it approved with the deck so we said if your personal opinion it won't be approved, then make a plan without the

deck. that's what he did. without it, the h.o.a. modeled engineer to submit the plan as it is. we couldn't find documents. since then we found more documents on the appellant. since we drafted the plan with engineer. so, to keep all options open, as to different oppose to the deck if it's possible to rebuild it. we come tonight with the original plan that has no deck. the original plan amended without the deck but without the (inaudible). we think it's a fair assumption. on a fair plan with the deck. so, we defined that perhaps best for possible to propose a deck that is not exactly as it is today and that was when so today is kind of like 5x12 and 25

years ago it was smaller than that because it was extended in the meantime. basically the same size. so, we hope that we'll have authority how to and we would like a solution. lastly, we are trying to do the right thing for all members that's including the a pel apartment. appellant. we want something approved by the city that is doable by license professionals and repairs are not doable we have to rebuild. so we have to find a solution. we are flexible. we come with three versions of the plan. we can make another one if you have another request. we are very flexible. we have no position of the legality of the deck. we have no idea. if anything was said about that,

it's a miscommunication and we apologize. >> thank you. >> thank you. >> we will now hear from the planning department. >> >> thank you, scott sanchez planning department. the subject property at 2634 octavia street is in rhq zoning district. it's a fairly unique lot that it has a seven-unit on it where only two units would be allowed. the lot is about 32 and a half feet wide and 80 feet deep. wide and shallower. one of the issues that comes up with this permit is all the work is at the rear of the property. the building is nearly full-lot coverage and the stairs, that is to be replaced is within the required rear yard. there is an interpretation that allows for a required means of egress, a second means of egress under the building code to be

replaced without need for a variance as long as it's generally within the same footprint or smaller as needed out of the code. it does not extent to decks and so a deck would not be allowed to be replaced without a variance in this case. so the plans that were approved as part of this don't have the replacement of the deck, which is complies with the planning code. unfortunately, the a pel appellant' proposal would require a variance. that's the issue we have in this case. i know many versions were only really brought to our attention earlier today. there is a proposal that has the repair of the deck and it's not removed and replaced and the rest of the stairs are reconstructed and i don't know if that is really a valid or

feasible proposal. something like that could be code compliant. it's just a question under the planning code. deputy director buffy will speak to the other issues with the permit. if there's a fire hall 10 feet in height, we would require a variance, even if it's just the stairs. so there's some of the things we're dealing with here and what complicates the issue here is that this whole structure is in the required rear yard. it's not a complying and so there's very limited ability to reconstruct that. i'm available for questions if the board has any. >> so, thank you for clarifying. i just want to (inaudible). we have a deck that is arguably

a staircase and deck which is arguably tested standing for decades and decades and decades and decades. it has now going down and requires replacement. but because the rules have changed with regards to what is legal and what is not legal, even though it was legal and it may have been legal in the past or was built originally and obviously approved by someone, now it's not. so, if this structure, which is the stairway and including the deck is rebuilt, then that's going to trigger new rules and it will require a variance. correct? >> i believe that the assessor records the building was built in 1904 so it was before we had a planning code and so everything at the rear of the

stairs and the deck are within the required rear yard and the reconstruction of the stairs only is allowed by interpretation with very specific facts and the plans that are before you are consistent with that interpretation. the issue here is the deck and so the deck cannot be replaced without a variant. >> if we certainly -- the owner of the condominium on the top floor wants her deck succinct, so i would, if that happened, and we find the appellant, it's going to basically make this permit go away and they're going to refile and then the refiling they're going to get a variant as part of their process. is that what i'm reading here? >> yes, if the board's position

is that this deck is available element of the unit and maintained, the board would have to grant the appeal and deny the permit and they would have to seek another path which would be proposal that would be the reconstruction of the deck. >> and the flip-flop, if we were to -- there's really no way that we could have adopt any plans that would included that and therefore, uphold the appeal. but allow the permit to move forward with plans, is that true is it. >> right. if the board were to approve the replacement of the deck within the required rear yard, the planning code require variance where none has been granted. >> that's what i thought.

we're stuck. >> commission lazarus. >> you are on mute. >> want to put you in an awkward position but you are comfortable and opinion is to the likelihood of a variance being granted and. >> haven't had the chaps to discuss with the zoning administrator. it is close to the rear property line and whether a fire wall would be required and definitely if a fire wall is to be required and to replace it if it is exactly end kind and it's

probably a little bit easier so we have to see the actual permit and we can go through that process. >> fair enough. >> thank you. >> my question is what came first the chicken or the egg, right? evidently this deck and its landing and its stairs have been here, according to the map, forever. by the disclosures, or the package, document five, it looks like it's been repaired or modified in the '90s. to me, i would also be leading in the same way that commissioner swig would. if this property was built within it, it would be nice to keep the building intact and keep the original intact as well. >> >> president honda: commissioner chang. >> question for the zoning administrator. understand that reconstruction the deck would require a

variance that does repair of the deck. would repair of the deck require a variance? >> it's repair and we generally rely of department of building inspection for these determinations if it's a repair permit of of a existing element of the building and that can generally be done without a variance. if you repair half of it by replacing it and then row pair e other half replacing it, that's not allowed. it looks like this is originally original or it wouldn't be what they're doing here so we defer to department building inspection and the project architect, our engineer whether it's feasible hopefully they can speak to that. >> is there a certain percentage where you can do repairs and then it's -- i mean, looking at the pictures in the photo, i don't think this is repair able at the point.

it's dry rot is substantial and it seems like it's been patch worked over the years. i personally would not stand on that deck. >> department building inspection does have standards for what is repair versus replacement and the percentage is my understanding. >> sorry, commissioner chang, were you finished with your question? >> i was just trying to find a viable solution. i think i agree with president honda and commissioner swig that, you know, the deck has been part of the enjoyment of the unit since the owner has purchased it. if the deck is repair able, then a variance wouldn't be required and perhaps that might be the easiest path forward. i would like to ask the project architect or engineer or the building department if that's been -- something that's been explored.

>> thank you. >> ok. thank you. so we'll now move onto the department building inspection. deputy director duffy. >> joe duffy d.b.i. the permit under appeal tonight, i'll just read out the details on it first. the existing significant deterioration on dry rot. no fire wall construction. demo existing illegal deck on the third-storey. the building permit and intake around the third of september 2020. and it went through the form 8 over the approval. and it went through planning and building and fire department on our permit center and it got issued on the 18th of december and suspended on the fourth of january. these types of projects dbi has a couple of and sometimes with a

building permit and and that left and existing structure without any drawings at all. you can do some minor repairs to this and get them into good shape. then it's usually that doesn't require -- we sometimes run them by planning but there's no structural drawings required and the other way to do it, here they could go more than 50% and do a repair permit but it would require drawings. if they wanted to replace in kind, exactly in the same configuration, there are no fire wall is it actually required. as long as it's the same configuration, no changes and we would allow you that and that's been a common policy of dbi since i've been there for 20 years anyway. it does allow the struck you're

to be replaced in the same original footprint as they say it. it is, as you heard mr. sanchez, the planning department may require a variance that could hold up the project and my fear on these types of projects is it looks like there's some driveway rot. it mentions that in the photographs. if we have to put it through a variance process, we could be waiting maybe another year and we've got another year's worth of deterioration. from a personal point of view, i like to see these permits being issued. if sometimes something that's been there for many years and it looks like that, whatever we can way get a permit to these people, the sooner the better rather than going back because it looks like it's a dry rot issue. i think they want to change that. so i'm available for any questions. >> i got a question.

so, when you say replacing kind, it looks like the deck was slightly modified in the last 20 years to extend another foot. if you look at document 5, you can see it's pushed out a little further. would you recommend that it stay exactly like that or go back a foot? >> if it did get modified 20 years ago, it should be cut back to the original. we would allow the replacement in kind of the existing structure that existed for 30 years or whatever the deck has been there. that would be the understanding that i would have. i think mr. sanchez would grow that modifications that were made to the deck maybe with probably without a permit and now they're in the required rear yard setback, that would trigger the planning department process. maybe the solution is to put it back originally.

>> mr. swig, you have a question. >> joe, i want to make sure we're not in conflict with each other. i fully degree with your direction and i think it is to replace enkind and issue the permit. what i really strongly heard from scott sanchez was, if you replace this deck, you are figure and upgrade to the current mandates the planning department. how do we stop you guys from fighting? who is right or who is wrong? i just, you know, you are saying something which would be the path of least resistance and i certainly wouldn't disagree with it. scott seems to be going the other way saying, well, if you do this, because i think 1904,

you know, pro development of standards, any of you touched this structure significantly you are going to trigger falling under the new rules. how do we -- where are we going with this, guys, without getting in a fight? >> i think that's directed at -- >> mr. duffy and then mr. sanchez can comment on his view. >> well, we never fight with planning. we certainly like a lively discussion about the planning code and the requirements in san francisco. >> sorry. >> that's all it is, there's always a good conversation without one. the rear stairs and decks are difficult because as i said, and i respect the planning code, obviously, but they are, as building when you are dealing with a building code, and wore dealing with something that's deteriorated and dry rotted, i

don't want to have to tell these people not to use the back deck and stairs because it's an ' grass path and our permit process where are we at with that and that's where i'm coming from. without disrespecting the code, i do think that -- there's just thinking out loud, we node to hear from the engineer and architect. can we do a minimal repair on the deck to allow it to remain and repair the stairs. i'm not sure if that's possible. but what i did hear mr. sanchez said the stairs could be replaced as long as the deck isn't replaced. the deck is the problem for planning. >> i believe they said they were not able to repair. it would have to be rebuilt. i think that's what the h.o.a. president said. maybe they can clarify that

later. >> we have building inspection planning department each as different roles and responsibilities and priorities. definitely i know where deputy director is coming from and they can comply with all the requirements of the city so it's a layer and did may be preferable because it's adjusting life safety issue but it may not need planning code requirements, that has applied and respected. they could approve or recommend approval of a design of a project that doesn't make sense from a life safety perspective and dbi said you can't build it that way.

all the and and you need a variance and people go through that process and in this case, and apply for a permit to restore the deck. i mean, that would have to be that may be another way, after the fact, go ahead if it is imminent life safety issue for the stairs, have that go through now and then separately have them go through a process of a variance for the deck if that's to be restored. >> we quick question for you,

mr. sanchez and i think commissioner chang had a question. how long would that process be? if they went for the variance process right now and knowing there's potential life issues, how long is ta process through planning at this point? >> it could be six months for a variance? >> maybe longer or six months? >> it's an unprecedented manner and staffing and the variance is about six months and six monthss is what we're looking at. >> commissioner chang, do you have a question? >> i just wanted to see if the h.o.a. or the project architect

to answer the question of the repair of the deck. perhaps it was already stated and i just missed it. >> so, the engineer is not here today and it's my fault. the opinion from all the professionals and all different contractors and you can't walk on part of the staff and the deck and it's one you have. it's (inaudible) too. so we could ask like a formal opinion or return opinion and the consensus it could be rebuilt. not part of the structure could be repaired. >> thank you. your question is answered. >> thank you, we'll now move on to public comment and i believe we have a speaker who called in.

hello, please call in user number 2, please, go ahead. user number 3. try dialing star 6. you might be able to unmute yourself. >> caller: hello. >> welcome. >> caller: hi. thank you for allowing me. >> you have three minutes. >> caller: thank you for allowing me to speak. my family and i live on the property that borders the rear of this condo building and thus directly impacted by the states stairsand deck in question thats on property line. the deck abuts the side of our

backyard and we support the fact that it is a safety issue and the stairs need to be repaired -- i'm sorry, reconstructed. we are opposed to reconstructing the deck for privacy and noise concerns. it was unclear to us exactly when the deck was expanded to its current size. it literally is closer to our backyard than my actual house is and it has a direct side of view, right into our bedrooms and we condition leave the drapes open and on many occasions, we have actually been at the receiving end of some unpleasentrys from the deck and my kids are fearful of being in

the backyard because of this deck and so, i understand that she has enjoyed this deck but we also think that there is a reason for the current planning codes in place to protect neighbors from having such close structures to the property line. so, i don't want to pose the reconstruction of the stairs as i see it and i see that it is very dilapidated and needs to be reconstructed in the event of any kind of life-threatening incidents. so, anyhow, thank you very much for allowing me to speak. >> thank you, we have a question from president honda. >> president honda: caller, are you still there? >> caller: yes, i am. >> president honda: so how long have you lived at the adjacent property? >> for seven years. >> president honda: so the deck was it a concern when you moved

into the property? >> caller: i thought it was very close to our property line. i did not, you know, i was not aware of all of the planning codes that are in place. it literally is the best part of that deck is exactly on our property line. so much that i have a tree in that area and -- i'm not sure if she has actually but she could actually reach over and do some trimming. she's right on the property line. >> according to the plans that were submitted in the brief, i believe the original deck was the same size just less one foot. so if there's been any extension, it appears it's gone one foot towards, i guess your property. >> caller: yes, i think i also saw that there was some firsthand accounts provided from someone with knowledge of the

property that indicated that there was some alteration of this deck in the last 20 years as alluded to. so i think it's unclear exactly what those alterations were. which is why there was why there was a question around the legallality of it. >> we're lucky in san francisco to have maps that show how large things are over the years. thank you, very much. >> is there anyone else here public comment. if you dial in press star 9. i don't see a hand rised. mr. williams, you have three minutes. >> i had to unmute. this deck is nowhere near the

property line. if you look at the photographs and you look at the plans, it's four or five feet from the property line. it's no in way is it on the property line. we've seen lots and lots of decks on the property line. it's troubling the h.o.a. didn't put any proof of anything that they're doing or saying in the record. they say oh, there's no way to repair it, et cetera, et cetera but they don't have an engineer here and architect here and not one whiff of it in the record. they claim they have legality and none of that is in the record. they claim they have no position but they filed the building permit application calling it illegal. i believe the board of appeals has the power to issue a permit to completely replace the stair and the deck tonight. the board of appeals and other cases has exceeded the height

limit. the board of appeals in other cases has allowed -- this isn't a deck, it's within the stair configuration, it's not expanded at all and it could be reduced to its original size. that could be issued tonight. i believe it could be issued tonight with a complete rebuild and replacement of the stair structure of the stairs leading to the deck and the structures that support the deck. a repair of the deck. if that fits in better with the. this shouldn't require a variance. i anticipated this argument and i put it in the brief i cited a code section that i can confirm that it shouldn't require a variance and the board of appeals has the power to over rule that and issue this permit tonight if it wishes. i'm asking, on behalf of this

appellant and the plan 2b approved and the entire structure be rebuilt on the condition that the h.o.a. seeks and obtains a variance to allow her deck to be built as planning on that or number three, which was the plan that i submitted sometimes today that it be rebuilt in kind that the stairs and the structure supporting the deck be completely reconstructed and the deck be row paired as needed in time. >> thank you, very much. thank you for understanding about the needs of this woman and the fact that she purchased this thing 30 -- >> thank you mr. williams. your time is up. we'll now hear from mr. gam onpress, you have three minutes, sir. >> yes, so to keep it short, we agree and we hope that you could approve one of the plans that we

sent. a bit late, sorry for that, tonight. waiting six more informs or mont more informs is a problem. dry rot is landing on two levels and it's going inside the building so there's already some dry rot in the building. if you do the walk it's fine but if you wait another year, it's not fine. you are going to contaminate and you have to repair inside the building. so we would like to avoid that if possible. in terms of the options, we submitted a plan without a deck and with the deck flush with the building and going up to the property line of the neighbor executive property line and so if you can approve one of them, that would be the ideal case for us and if you think that the only ways to go for a variance

and the h.o.a. would have to vote on it and talk about it but if you could give us some estimator opinion about what we should do and what is your duty or what you recommend we do, we would appreciate it. we are all doing that the best we can. we are not professionals and we would like to have guidance to best proceed with that. thank you. >> thank you. we will now hear from the planning department. mr. sanchez. >> thank you, scott sanchez planning department. couple brief points. so, if you look on the plans that were submitted for this permit, i'm looking on the site plan and it does show that the deck and stairs extend to the rear property line. it's not near the rear property line or the site property lights. according to the plans it's on the rear property line and the deck is a couple feet away from the north side property line. it's my understanding that the

caller was at the property adjacent to the wear of the subject property and so their rear yard kind of abuts with the rear yard of the subject property. and this is a challenging case. we have heard concerns from a neighbor, she's about privacy and the deck and the re construction of the deck. if there's a separate variance process, those things could be properly heard and decided by the zoning administrator. and any decision could be appealed to the board of appeals. at this point, there's been no public notice of reconstruction of the deck itself. it's only been the row reconstruction of the stairs. i'm happy that the caller was able to call in and express their concerns. even though, you know, the deck structure may predate everyone on this call through when we

were born, but it doesn't mean it doesn't need to meet current codes many of the fact they want to reconstruct it, they need to meet current codes. i appreciate the arguments of the the appellant that the board has great powers and we do rely on the board to make these difficult decisions but our opinion is such work rice a variance and i appreciate that the argument of the appellant and it benefits his client to have that argument they have this authority in another case it wouldn't benefit we are looking at this and being consistent and how we apply these roles and we can uphold the permit and if we want to make the change to the location of legal versus illegal. we think that if the deck is to be replaced it needs to go through the variance process and the neighbor can have their variant process at that point

regarding the privacy concerns that they have with the deck as well. and i'm available for any questions. thank you. >> i have a question, mr. sanchez. so, usually what comes before this body is a non-conforming or a deck that's been put up without permit. and they're trying to seek legalization. in this particular case, we have a deck that evidently, according to the map, is probably original or period to the property. and so, you know, the planning department spends time deciding and architectal features that are important. wouldn't this be similar in that case? when the builder built this, this was an original design to the property? >> i think your probably speaking more to the historic

preservation issue and concerns with the department. generally those are row lie ant on the publicly facing the street facing aspects of the property. this is not going to be a preservation issue. the demolition of the deck. it doesn't rise to that level. it wouldn't be a preservation issue to remove the deck and stairs, even if they have been there for a long time. >> thank you. we'll hear from deputy director duffy. anything further? >> commissioners, just, i'm just thinking of my experience of dealing with those types of issues in the field over the many years. they are difficult and challenging as mr. sanchez said as well. it's a pity the architect or engineer aren't here so they can give us a description of how bad this deck is. it looks bad, but sometimes these conditions can last for, a

year. there is, in the past, we've all just had to put our thinking hats on here. we could possibly issue a permit for some emergency repairs to let a contractor go in there for a day or two to strengthen up some of the existing structure and they could apply for building permit with the variance and the planning department's approval and come up in six months or whatever that is with the proper permit that they need to take care of it. that permit then could be appealed and the neighborhood isn't happy about the deck could be involved. i'm just thinking out loud here, there are ways for us to work with engineers and architects to make things safe on a case-by-case basis where we're trying to preserve something we know how to take through a longer process of approval such as the variance and you know i mean, if this deck got made

bigger without a permit in the past 20 years, that probably will come no account with planning. i hope and think the fire wall issue that d.b.i., i don't work in plan check, but i don't think the fire wall is going to come in here. those fire walls are an ordeal and if they're pulling it become pretty much the same way, we should be allow the rebuilding of it. i'm just putting the emergency permit out there that we can work with them on and i'm not sure if that's something that we can hear back from them on. i just wanted to add that and i'm available for answers. >> president honda: thank you. >> mr. duffy, the emergency permit, is that a separate event from tonight? so, regardless of how we move

forward, unless we say build it, would the process be to deny -- to stop the permit because it's illegal and require a variance and then, as an advisory as far as hearings, advise the owners of the building to file for an emergency permit as a stop gap? how does that work? >> yeah, i would imagine you would be denying this permit going forward and it could start a process of just obtaining an emergency permit with our plans. within the next week or two with d.b.i., these are only suggestions. i think that this permit tonight would be dead and they could give them something to make the deck safe. i don't know if this is viable or not. they could apply for the permit

they probably should have applied for in the first place with the planning department's review and approval. the other thing, mr. williams mentioned and i don't think this is possible. there is the option of repairing that top deck and replacing the stairs if the gentleman said that that was beyond that. so, that would be something that i think the board could modify this permit. i'm just giving you some options, that's all. >> ok, thank you. so commissioners, this matter is submitted. >> i'd like to start, please. so, if we go with mr. duffy's original, very good idea, unfortunately we have lots of

good ideas and also very justified direction. mr. duffy is very good idea is, issue the permit and replace it as it is. and he is seem to be very sure that that would be ok. i hear that flies in the face and abuses the planning department's codes and so that makes it not such a good idea from a legal standpoint and i'm taken the position we don't want to set a precedent because happen to like one projector we feel sorry for a permit holder and we abuse the statues of the planning department. so that is really problematic.

i think the idea that mr. duffy puts forward with the advisory that if this is a safety issue and this stairway will fall down and create a safety problem and we should deny the permit and suggestion they file for an emergency permit and go through the proper process and mr. sanchez is recommending which is file for the permit which will require a variance and then we'll probably see you all back here several months from now. at least the safety issue and the stairway will be handled at least temporarily and i really do believe the stairway and the deck should be repaired in kind. i do believe that if we come

back with a variance, that i would support that variance, projecting what i would see it look like. so, i would like my fellow commissioners points of view on that, which i think is that we should not allow this permit to go forward in anyway, shape or form. because of the abuses of the planning code and we should suggest the emergency repairs be done and then we'll probably see it later. >> president honda: any other commissioners that would like to weigh in? >> i'm fine with that approach. >> commissioner chang. >> i'm fine with that approach. >> commissioner santacana. >> so, the thinking is, i mean, this will come back and wore

just ok with that? >> maybe, maybe not. depends on what happens with the variance. >> yeah, right. >> ok. >> i'm good with it. we have potential of it coming back and it doesn't have to come back and it goes smoothly and it's difficult and they're not using and of the planning and the planning department. >> there's an additional process. i agree but i do, as agree with commissioner swig, i think these are -- these have been a part of the property since its construction and i believe that these are property rights that should not be ignored. if it came back as an appeal, i would support the deck being rebuilt in kind. so, commissioner swig, do you have a motion that our executive

director would put together so well. >> i have no clue how to put that motion together. >> our executive director would. >> i think it's pretty straight forward, isn't it? >> well, before we get there, i see that deputy director has his hand raised. president honda, can we hear from him now? >> president honda: yes. >> sorry, just i'm one other thing that i didn't say was that if you want today give us a couple of weeks and we can do a to make sure this emergency permit is viable and i came up with that idea and maybe we should leave it a couple of weeks and see how bad that thing is and it's it's something i forgot to say, i'm sorry. >> why think it's going to change anything and i was stand on the same and we are in

violation of the planning code and setting a precedent so that mr. williams or one of his peers could come back later and say you did it for this guy. do it for me. i'd like to keep it clean and i believe mr. sanchez is correct on his point of view even though i like mr. duffy's idea better. i'd like to keep it clean and so probably, if they can do it, get an emergency permit it's fine and that's not our business tonight and our business is to rule on and on this report. i don't think it should move forward. >> i believe mr. lazarus has a question. >> i don't know if there's any harm in a two-week continuance

and (inaudible). >> you are breaking up commissioner lazarus. your connection is not great. >> sorry. i don't see the harm in a two-week continuance other than two weeks of risky staircase. if it allows -- i mean, we're going to did not eye the permit potential leon the basis that there could be an emergency permit issue but now, that potentially and and they have an opportunity to go out and make that evaluation and additionally we could hear some more from the contractor and the engineer whomever, about their vows on it as well so, i would consider a

two-week continuance. >> i wouldn't have a problem with that. >> i was just going to agree with commissioner lazarus and she continued my thoughts. >> why don't you make a motion and i would support that motion. >> i'm going to move to continue this for two weeks so that the building department, pref blee, deputy director duffy can do an inspection and inform the board the its next meeting to the viability of an emergency permit. >> madam director, what does our schedule look like? >> we can put it on the third or the tenth. >> you also want to hear feedback from the engineer? is that another basis for continuance? >> yes. that as well and i assume inspector duffy would probably have those conversations.

inspector duffy is two or three weeks better for you? >> that would be, if you don't mind. >> how about for the permit holder and the council? is march 10th going to be ok for you guys? >> yes. >> ok. so, we have a motion from commissioner lazarus to continue this matter to march 10th so that d.b.i. can conduct a site inspection to be able to report back to the board on the viability of an emergency permit and so that the engineer for the project can report back to the board regarding the deck. i do see mr. williams has his hand raised. we are in the middle of a motion. president honda -- >> president honda: the only would be march 10th ok,

council? >> it's not. so would you like to move it further? >> the 17th would work or the third but i'm flying out of town at 2:30 on the afternoon of march 10th. >> president honda: which covid flight are you on? >> one to arizona. >> president honda: it's a covid flight. >> we have the 24th would be next. we don't have one on the 17th. march 24th? march 3rd, 10th or 24th. he can't do the tenth. >> now we're talking about a long delay. do you want to try to squeeze it on the third? deputy director duffy, would that work? >> sorry. that will work for me. yes, i'm make it work. i'll change things around. >> thank you, very much. >> thank you. >> thank you. >> so just a tweak on that motion. that motion is to continue this matter to march 3rd for the

reasons i previously stated. on that motion, voice president santacana. >> aye. >> president honda. >> aye. >> commissioner chang. >> aye. >> commissioner swig. >> aye. >> so that motion carries 5-0. so, are we going to allow for any further briefing or documents to be submitted by any of the parties, the engineer or do we just want them to report back at this point? president honda? we can't hear you. >> president honda: sorry. i don't think we need any other additional information. i mean, the department will be there. >> each party will have throw minutes each and we'll have no rebuttal. we're moving on to item number 620-404-1900 bryant street investors llc versing the zoning

administrator and subject property is 535 florida street, appealing the issuance on may 29th, 2020 to 1900 bryant street investors. determination that building permit number 201210193467 changed the previous restaurant use to two separate principal uses. catering and other retail sales and services. this is planning code section 890.102 many of the catering use has a total of 6,408 square feet despite being on separate properties. the catering and retail use on lot 002 could be converted to an accessory calf ter why for a laboratory use on lot 05 pursuant to planning code section 803.3b1c and result in the conversion of 5,000 square feet or more of pdr use on a property zoned umu on july 1st, 2016. as such it would replace .75 square feet of pdr space

converted pursuant to planning code section 202.9. this is record number 2020-001656 and we will hear from the appellant first. this is a preliminary matter. commissioner chang has something to disclose. >> i'm a director at a firm that has retained them to represent us on certain matters, however, that will not have a bearing on my decision tonight. >> thank you, commissioner chang. so, we will hear first from i believe mr. aberams. >> jim, legal council to the property owner, 900 bryant street investors. i have a presentation that i'm going to share with you, which i have not successfully done. let me -- >> we'll pause the time. >> >> let me try this one more time.

>> councilor, tall but in this zoom you look really tall. [laughter] >> let's see, let's do this. this way. ok, here we go. does that work? >> yeah. >> we see it. >> great. >> so, the core question of that matter is weather the second there were space at 535 florida street was permitted for office use as opposed to accessory office use. this is a major distinction. and as this board understands, in accessory office use is an actual office use but considered incidental to and part of another use and like the office of the back of a grocery store to manage a grocery store and in this example, the accessory office would be considered part of the retail use as opposed to an office use. with regard to 535 florida street we believe the answer is clear and the black letter of the permits is positive. for everyone, this is a situation there's only one building permit and one set of plans whose governing the

project so we don't have to look at a wide variety of plans and permits. we have one permit and one set of plans many of the building permit signed by planning a proves an office use. not an accessory use. this was not provided by prior council to the d.a. and lod request, which we believe may have led to unnecessary confusion. the project description in the building plan signed by planning states that office is the proposed use on the second floor. critically, these permits were approved in 2012 when office was principally permitted or as some people say as of right use at this property. therefore, the sole approval required to establish an office use was the sign off of a building permit by planning. because this occurred, and the permit was not appealed to the planning commission or this board, we submit that an office use was approved on the second floor. as shown here, this is a zoom in of the back of the building permit. doug vu, the planner assigned to

the project in southeast quadrant wrote the approved use was office at the second-storey. to read this permit differently would mean that the actual words written by planning staff on the permit should be disregarded. likewise, the cover sheet project description of the building plan associated with the permit, states that the proposed use of a second floor is office space. this sheet is also signed off by doug vu planning department staff at the same time. in 2012, up until 2020, office was principal blee permitted on the second floor of this building under planning code section 843 and they do not disagree office was permitted at this location. again, we believe that the black letter of permit and any argument that the planning staff intended to mean something different than what was written on the permit is arbitrary and not supported by the record. any intent based justification for reading the permit differently than what it

actually says is also undermined by the fact the distinction between office use and accessory office use was a hot topic in 2012 when these permits were approved. after spending 10 years completing the rezoning the question of whether existing and proposed office uses were illegally established throughout soma, the mission and potrero hill was a funded policy initiative. there was an amnesty program for offices to be legalized and instituted a consistent practice of stating on permits whether any propose the office use was accessoriment there are many comparable examples where accessory office used is clear and unequivocal. like here, such as 1401 16th street. in 2011, one year before the 535 florida permit in question here, planning approved a permit for the use of 1406 16th street which is a flew becomes away and denoted clearly accessory

office. second, the ceramics building across the street, across florida street from 535 florida was permit inside 2012, nearly concurrently with the permits. and in this case, cory teague, who is the da and a planner and the colleague of doug vu said it was an southbound sis row use among other uses. here is another portion of that permit denoting accessory office. and again, this building permit was for a project at the same time across the street in the same umu zoning district as 535 florida. and although we do not believe this evidence is necessary or dispositive, we have submitted a written affidavit from chuck siegel, who is charles from charles chocolates, it was the corporate headquarters rather than an office to manage the downstairs uses. charles accounting marketing and hr and other corp at activities were all managed from this

space. releasing 535 florida, they operated exhibition kitchens paired with retail storefronts in the bay area in emeryville, at 6529 hollis street. and the west field shopping center on market street. during this period, charles chocolate was a multi-million dollar business enterprise with runs of retailers across the country including prominent retailers such as whole foods and starbucks. the company was operated and managed from 535 florida street and as you can see from this quote from charles siegel, one of the primary reasons why they leased this space, was to use it as their corporate headquarters and the fact that office was allowed here by zoning was important factor to them in their decision. in conclusion, we request that the board over continue the l.o.d. and rely on the plain language of the building permit and plans approved by planning. respectfully, the position relies on a retrospective

interpretation of the permit and opinion that the office space appears to have been used in an accessory manner. given the office was principally permitted and the permit a fact factway that use it's arbitrary. what if charles chocolates had grown and operated a larger group of stores and facilities from this location? despite office buying being use, the interpretation meant if they grew, they would have had to vacate the space to find another location for its office or more oddly to be required to submit another duplicate permit that again requested approval for the office use at exact same location. we don't understand why a second permit again denoting office as the proposed use of the property would be seen differently than the first permit with the same

language. this l.o.d. has important ramifications for the on going operation of the value of the building. based on changes and zone tag occurred in 2016 under proposition x. we're happy to discuss these concerns but we don't think that they're crucial to the core question here. >> thank you. >> thank you. councilor, i do have a question. so, regarding the pdr usage, how do you think it does not apply to your client? >> so, the issue is whether or not there's 5,000 square feet of pdr use at this site. the lod clearly explains that there's a principal retail use and a principal catering use on the site and because the catering use is a pdr use, it's the amount of pdr space is over 5,000 square feet than prop x is triggered. the question is whether or not this office use for charles chocolates is part of that catering use, as an accessory

office and therefore a pdr use. or whether or not that office is separate from the catering use as a corporate headquarters and not part of the pdr use. if this board makes the determination that this is a principal office rather than an accessory office, there would not be more than 5,000 square feet of pda space and prop x won be triggered. >> president honda: thank you. >> you are welcome. >> thank you. we will hear from the planning department. >> thank you. scott sanchez, planning department. subject property at 535 florida street located within a umu or urban mixed use zoning district. at issue here with the letter of determination is ex low what president honda was getting to. the core question is whether or not the use that is currently there, under these building permits would constitute a pdr use to prop x. the letter of determination request was submitted a year ago

by different council and i peer mr. abrams filed the appeal and is trying to i think better articulate the concerns of his client. we believe that the letter of determination was properly issued. we have reviewed the materials that mr. abe rams have provided and is maintaining the conclusion. really the issue here is that 2012 permit, which sought to change the use from the previous restaurant use to catering and retail, the 7,179 square feet of that, about 771 square feet is retail, or was retail and 6,408 were catering and within that catering, there was about 1,827 square feet of office which was, we saw, an accessory. a fairly small amount. less than 2,000 square feet of office. it was less than one-third of the over all area of the catering use. which fits within the accessory use requirements. while office would have been a

principally permitted use at the time, it would have required a couple of things, first, the building itself is a fairly large building. i think it's had a unique history to it. but the records list that's it was constructed in 1923 and contains 54,765 square feet of commercial mixed uses on three-storeys and i think there's some development in this property as well. it's part of a larger site. so at that time, they would have been required to record a notice of special restrictions designating the floor. because the umu controls, while offices allowed, you are limited into how many floors of office. they would have been required to record a notice of special restrictions designating that as office-storey. section 312 neighborhood notification would require for the change of use from the

restaurant to the office and we did discuss this with the appellant. that same requirement would have applied for the change of restaurant to catering or retail or the restaurant to catering. the 12 notice was done at the time. certainly, going to office use, it would have been documented differently through the notice of special restrictions. and it should have required the notice. in terms of the plain language of the permit and if i can share with the board, the permit itself, i appreciate the appellant has provided parts of the permit but let me just give you the cover. so present use restaurant, proposed use, commercial kitchen/retail. what's the full description here? interior ti of existing restaurant into new commercial kitchen and restaurant. new fixtures and finishes and

equipment, ma cal cal pluming and no exterior changes. no mention any of the present use and proposed use of office and the project description. certainly, on the plans, it does show the office and certainly on page 2 we don't doubt that staff call it out that there's office at the second-storey. we don't believe that the permit quite as clearly shows the change to a separate principle office use that the appellant argues. and so, i can stop the sharing there. so, one of the concerns raised by the appellant is how this would a ploy to other pdr uses and that differ from the issues and concerns raised by the appellant i'm concerned how it impacts pdr uses moving forward many of it's very common for pdr

uses to have accessory offices that control what goes on within that building and also the shipping to their wholesale clients and all their commercial clients. we do consider that to be a separate principal office use in going along the arguments that the appellant has, it's its own principal office use. we understand that their goal is to make a prop x won't apply. if the office use, which is again, less than 2,000 square feet, less than a third of the catering -- less than 2,000 squared feet as office, way less than a third. a bit less than a third and their goal is quite clever and it is if the board finds that is separate independent principal

office, then that is enough to get them under 5,000 square feet, province x doesn't have to apply, they don't have to preserve this as pdr. i understand the goal and it doesn't impact the economics of the building. we believe the permit sought to change those from restaurant to catering and row dale, that's retail, that's thelanguage on tt means this is more than 5,000 square feet of catering use was the last legal use and it would be subject to prop x. we appreciate the arguments raised by the appellant. the zoning administrator took time reviewing this. before the appellant was involved, with the previous council, and then subsequent we reviewed all this material again and we have the same conclusion and it was considered determination this is not prance pal office, it's accessory office and that the property

will be subject available to prop x. i'm available to any questions the board may have. >> mr. sanchez, the permit holders council showed that your staff puts accessory office. so, is there a reason why -- is there a difference between accessory office and office and why would they just put office rather than accessory office? is that member still with the planning department? >> they are no longer with the planning department. we can't ask them and this is a permit that did occur in 2012. it would have been subject -- had that been the intent, it should have been on the cover of the permit. it should have been the po posed use. it should have said office. why staff did that rather than putting accessory office was an oversight. i think they were trying to document everything that was happening in this space.

regretfully, they should have been as clear as mr. keying was in his approval of the project across the street and note being accessory office. in reviewing this, he found this was in fact access row office and not a separate prance pal office use. >> president honda: maybe one of these days we should have the da defend his own stuff in front of this body sometimes. thank you. >> thank you. >> just checking into to see if dbi wants to add anything to this case? >> nothing to add. >> thank you. >> ok. we are now moving on to public comment. is anyone here to provide public comment, please raise your hand. i don't see any hands raised. we will move on to rebuttal. mr. abe rams, you have three minutes >> thank you very much, i appreciate scott's comments but he is making intent-based arguments as opposed to arguments on the black letter of permits.

the front page of the permit is completed by a contractor who is making their best effort to fill out the permit in the correct manner. what's really dispositive here is what the planning staff writes on the permit. what is shown in the plans as prepared by the architects and signed off by the planning department. so although the front page of the plan describes the project it's from a building code compliance standpoint, not a planning code compliance standpoint and the box in the back is dispositive issue in terms of what the permitted use is. there's been many, many circumstances where the back of the permit describes what the use is and the front page of the permit isn't as clear and the planning department and the zoning administrator follow what the planning department wrote as opposed to what the contractor who may not be ultra-informed wrote. i grow an nsr is required if you are doing an office space. why that didn't occur is a mystery. it is a very unusual requirement of the planning code. it's something that we would be happy to do now.

it doesn't surprise me that that may have been missed, given that it's an unusual requirement. it's not something that is typically required when you are doing a principally required permit. scott is also making a policy argument about pdr spaces and a desire to have offices for pdr spaces not be considered to be principal but the fact they could be considered access row y doesn't mean it was not a permitted principal office. it was prance pally permitted by the zoning and the applicant believed he was getting a principal office. it was allowed by the law and to deny the applicant his rights under the law by reading a permit as saying something different than what it actually says, i think it's unfair. and so if there's a policy argument to be made that accessory office should be allowed to have pdr districts, that's fine but that's not really relevant to the issue here, which is the umu director offices were allowed and

permitted at this time. >> thank you. we have a question from commissioner swig. you are finished, correct? >> i am, thank you. >> thank you. >> mr. abrams what confuses me is how even -- i'm not going to argue with you as to whether the office upstairs served the charles chocolate chain or not. it would seem very odd that a charles chocolate office upstairs from a charles chocolate retailer would not have some portion of that office's activities accessory to the retail operation down stairs. so, if any one portion of the

office upstairs provides services accounting or whatever, for the retailers down stairs, then in effect, it is an accessory office while also serving a purpose as a primary office for the corporation as a whole. how do you respond to that? >> i think that we're open to the idea that a portion of the office was accessory to the retail use down stairs. and it was serving to operate the retail store down tears. there are also other retail stores with space was operating. and there were also other facilities that this location was operating. there are storage facilities, there was packaging facilities, this was again, this was the only headquarters that existed for this company, right. so to the extent that there was a synergy with the down stairs retail use, you know, i think it's important. again, maybe that would be a sub component of what was happening in that space.

>> would you consider that maybe unknowingly, that charles chocolate was operating illegally and that in fact it should not have been a principal office and they didn't get caught and in fact it was unto the assumption of the planning department it was operating as an accessory office and that's also something that is confusing. i'm not being accusatory but that -- whether naively or dishonestly it could have occurred and knowingly a office could have been operating illegally under those situations. >> commissioner, there will be nothing for them to gain by doing that. this was permitted by-law at the time. so, this use was absolutely allowed by the zoning. there was no approval required other than a building permit being signed by planning. so, there would be no reason for

any kind of sub tra fuge or to use this space for something it wasn't allowed for. it was allowed as a principal office. >> thank you for that clarification. >> president honda. >> president honda: so, councilor, what triggered this? why now? if this was a principal usage, in 2012, and it's now 2021, what triggered this? >> very good question. so, the property owner had a tenant that was seeking to occupy the space. as a non pdr use. and they were in lease negotiations and it was a valuable lease and unfortunately that lease was lost because the l.o.d. was released and the l.o.d. said that because the office upstairs is considered to be accessory and not principal, that you have more than 5,000

square feet of pdr and prop x is triggered. under prop x you need to re pace .75 square feet and this almost never happens as a practical matter. what it does it forces people to look for another space to convert it to pdr use because you are not allowed to use the existing space and convert it to pdr. so what prop x does, if you are over the 5,000 square foot threshold it effective low just locks you into pdr use. >> i think that was the idea and i believe that was supervisor jane kim that initiated that way back in the day. so, your client occupied this property up until when? >> our client has owned this property for a long time. i would be speculating to guess for how long. i think it's been probably more than 20 years. >> is it vacant now and how long

has it been vacant? >> it's been vacant, i believe, for about three years but i would need to confirm that. >> thank you, councilor. >> we'll hear from the planning department. >> thank you. scott sanchez. i'll be brief and i think i really echo some of the comments that commissioner swig had. i think it's how the zoning administrator was looking at this is that the office use was really the integral part of the underlying pdr use of the charles chocolate use. and the zoning administrator did careful low consider this. it's not similar to other pdr uses where there's a small amount of accessory office space and so it's pretty characteristic to have that office space. it's more unusual a use like this would have separate independent primary office space. that's the characteristic that we don't see, they don't

usually, especially if they're within a third of the floor area they won't come in and seek a permit to establish a separate principal office use. most uses are trying to get their office to within a third so that they could be accessory office. you know, the zoning administrator did consider all these facts and i believe properly made this determination and did not air or abuse their discretion when making this determine nation and i'm open for questions. >> commission swig. >> so, counselor was very sure on his position that oh, of course, everybody knew that it was non accessory office. you are (inaudible) you are not quite as sure as he was that that is an assumption. >> i think our assumption this is accessory office. that is the most typical

characteristics when we have a underlying use that has a very small component of office that office is accessory and they're not seeking it as a separate principal use. so my opinion is different from the appellants in terms of what the a parent nature of the use would be. >> if we go in the direction of what counselor is trying to get us to believe, what this really flies in the face of why the legislation was provided in the first place. and i do know this to be true and this is a question. was it not the intention of the legislation to protect pdr space and so with pdr space, you must

have an office in support of the business that is done in that pdr space? if you do what counselor is advocating and not link the two together, not link the pdr space with the accessory office, then, you are not protecting important pdr business occupancy which was the intent of the legislation, correct? >> yes. this was approved as, you know, 6,408 square feet of catering use. of that there was 1,827 square feet of office that was accessory that served that primary pdr use and that is more than 5,000 square feet so it's subject to prop x. the a pel apartment would arguee office is separate so they can remove the pdr. >> and so, i'm trying to

remember about two years ago, we had president ryan and a soft care company i believe it mor pdr space into an office and we had the same discussion that they had reached their rights or they had gone beyond their rights to occupy that space because it was restricted pdr space with some level of office but they had gone beyond that ratio. is this at all like that? is this in the same spirit? >> i can't recall that space or say if it's the same unfortunately. your memory is better than mine these days. >> i doubt that.

counselor, your time is up unless someone has a specific question for you. >> the bottom line, the intention here is that when the letter of determination is all about, it's the intent to protect pdr space and not to brows there's an office in a pdr building we can't break that office out because then we will destroy the whole concept of having pdr space and has a office space, right? >> i think as i understand, there argument is they want to get it such it's not subject to prop x. it's subverting prop x in my opinion. they're trying to get around it on a technicality of not enough pdr here because we shouldn't

count that accessory office so, yes, it's subverting prop x and prop x applies here. >> and it risks the fact that pdr space which is trying to be protected by the legislation would be subject to going away. >> this would be subject to prop x. >> that's what i'm trying to understand. i appreciate it. thank you. >> you had your hand up earlier many of thank you. >> commissioners, this matter is submitted. >> so commissioners, i would like to start. so, the legislation regarding pdr, it was during a time and at that time if they felt they did not comply to that legislation,

that should have been dealt with. it's similar to billboards, when the billboard moratorium came in you apply to submit or your billboard was going to go away. in this particular case, sorry, my dog is in the background. in this particular case, i am going to agree with the zone administrators and determination and of course, the property owner would like it to be non pdr but there's a reason it was put into place. that's all. any other commissioners would like to chime in? >> go ahead, commissioner.

>> i agree with president honda. we undermine the law and the intent of the situation and if the intent was we are just averting that legislation. i think i just want to acknowledge that given that this issue was such a hot topic in 2012, that it's reasonable to assume that the property owner understood that they had a

principal office and you know, did not feel the need to take further action. i think there was a good amount of evidence demonstrated by the appellant's brief that alluded to that or suggested that that was the understanding. and i think that it's worth at least acknowledging that possibility. it's unfortunate the documentation by staff, by planning department staff is not clear in that if it was principal office, that an nsr was not recorded and especially how hot of a topic and given the permit was issued that

documented the use by planning department staff, that they could assume the office was a principal use on the second floor. >> anyone else have a comment? would anyone like to make a motion? >> i will make a motion. i make a motion to deny the appeal on the grounds that there's been no abuse on behalf of the administrator. >> ok. we have a motion and and the determination was properly issued. on that motion, vice president

santacana. >> aye. >> commissioner lazarus. >> aye. >> commissioner chang. >> aye. >> commissioner swig. >> aye. >> ok so, that motion car's 5-0 and an appeal is denied. we are now moving on to item number 7. which is the adoption proposed adoption of the fiscal year 22-'23 board budget. so, alec, can you put it up on the screen? everyone i presume has it before them. i did have a discussion before the meeting with commissioner lazarus and i would like to make a few minor changes to page 7

and 8. in terms of parenthesis around the number. i'll just begin. the city departments must have been two years and it's required by the administrative code and before this deadline, the board must adopt budgets for the next two fiscal years. fiscal year '22 and '23. i'll going to briefly touch on the overview of the boards' budget structure and update on the current year budget and recommendations for fiscal year '22 and '23. as you all know, our revenue comes primarily from sur charges imposed on permits and they represent 96% of our budget. filing fees for appeals represent 4% of our budget.

in terms of our expenditure budget, i'm on slide 4, alex. more than two-thirds about 69% of the board expenditure budget covers salary and fringe benefit expenses and services provided by other departments and rent comprise the next largest portion of the budget. 23%. the remainder is on smaller items, neighborhood notification, materials and surprise. moving on to slide 5, obviously our appeal volume is significantly down this fiscal year. it's projected to be 43% below the 10-year average and obviously covid-19 has impacted the number of permits that are being issued and therefore the number of appeals being filed and moving onto the next slide. we are running a deficit and

just as a refresher, when i first started in 2018, the sur charges were reduced significantly from $25 to $18.5e and planning department sur charges. and the reason for that was because they had a reserved fund. the controller and because surcharges are supposed to be cost recovery, they're supposed to pay for the expenses of the board, it was controllers office, their vow we were over viewing on surcharges if we had such a big, you know, deferred revenue account. their goal was to reduce that. commissioner swig, do you have a question? i can't hear you. >> i'm going to wait until you complete your presentation.

the controller office does a surcharge in april based on the board's operating expenses and the volume of permits they project will be issued. they will make a determination april as to whether or not the surcharges should be increased. we've had very negligible increases the past couple of years, basically cpi increases so last year in control, the controller office only suggested we had another minor cpi increase and i think they will be changing their strategy this year because our reserve fund will likely be depleted after this fiscal year and we need to

reserve -- we need to build that up. one, to provide a buffer pay our expense and do we get money from the general fund and of course, they don't want to do that. we didn't spend as much money, so there's a savings in terms of 150,000 projected in savings. this is the page i want to change. all the parenthesis on this page should be removed so that it makes more sense that it's not a

loss. it was quite expensive but fortunately since that contract was expiring and the process was arduous to get a new contract out they have a tool that

they're letting us use for free and now alex is able to get the addresses themselves. that's a savings of about $20,000. it's revenue expenditures for the second row, third column, i'd like to remove the parenthesis as suggested by commissioner lazarus and our projected deficit will, if it is this high, then we will not have a reserve fund. i jumped ahead. if we go to slide nine. i did talk about the surcharges and how they need to be increased. so that will be the discussion this year. and then moving along, to page 10, it just talks about proposed budgets.

i am proposing that we spend less the next two fiscal years, primarily because of some salary savings and a few other areas and so moving onto the slide 11, it is just the goal to work with the controller's office and try and come up with a good estimate as to what the surcharges should be and the volume of permits so our operations will continue. that is about it. that was 2014 the surcharges were reduced. was that the year? >> no, 2018. >> 2018. >> i was particularly vocal on this subject. i completely disagreed with row ducing any fees. my point of view was that this is not what you do if you are

being fiscally responsible because there are ups and there are downs. just because you are in the ups mode 2 doesn't mean you are in the down mode. so, i would recommend and so i -- you know, the dramatic forshade owing became reality. i would suggest that you go back to the controller's office and suggest that we reinstate the to what it was in 2018 before the reduction occurred and then add about what would be cpi index from that point forward.

and, i think at that, doing that, we will be at a more appropriate fee level than we are now and in fact, if they wouldn't have done it in the first place and we wouldn't be raising the piece in or din inor dinantly. >> thank you, commission swig. >> i suggest we go back to where it was in the first place and do cpi index increases from that

point. that is a simple solution and a reasonable solution. >> commissioner swig, that was actually make fiscal sense and be responsible. we're talking about city government. >> huh. >> 10 years of fantastic business, all wiped clean in one year. isn't that amazing. >> i do want to thank our director and our former president for putting all the work in and staff for putting this together for us. thank you. >> i had nothing to do with it, it was all julie. [laughter] >> and her staff. >> i lost all your money, that's why we don't have any. >> no. >> you are fired! >> i'm not taking the blame, i'm sorry. >> we shouldn't have a problem, you are not sending out briefs and we don't have dinner anymore. that is loan -- >> that alone. >> and the parking, not to mention the parking. >> nothing. so i mean, you know. but again, thank you staff for everything and if you need my input for anything, julie, give

me a call. >> it's a big wake-up call for the controller's office because they're not going to want to give money from the general fund to support our operations and they would have to. >> i think they have much bigger issues. >> i think so too. >> so, i think the surcharges are relatively low when you hear, i think, the planning department. their surcharges are 1000 plus dollars, i mean maybe they have less action, in any event -- >> weren't advocating some gigantic -- you are absolutely right. the charges were reasonable before they were reduced and then they -- to bring them back would not put a significant burden upon the public in the context of what the charges are for. >> it's a safety net.

>> do you need a motion to approve this? >> first, i have to ask if there's public comment and then yeah, i would propose we have a motion to approve as amended with the parenthesis. so, is there any public comments on this item? if so, please raise your hand. seeing no public comment, this matter is submitted. >> can we move this forward and approve the budget but with the recommendation of the surcharge fee review. and get with a specific advisory or a specific -- >> i'm unclear what you want. there's going to be a review, it happens every april. we shouldn't say a number because they could say it should be more than, for example, $25. you know. >> ok.

>> i would move to -- >> i mean i think it's fair to say that surcharges should increase to cover the board's cost. >> that would be my motion to approve the budget with what you just said as a kicker. >> and also, as amended, with the parenthesis on the pages i indicated. >> exactly. didn't i say that. >> we have a motion from commissioner swig to adopt the budget for fiscal year 22-23 on the condition it's amended to reflect the removal of some parenthesis on the pages indicated by the executive director with the recommendation the surcharges be increased to cover the board's cost. on that motion vice president santacana. >> aye.

>> commissioner lazarus. >> aye. >> president honda. >> aye. >> commissioner chang. >> aye. >> thank you. that motion carries 5-0. and the budget is adopted. >> thank you, everybody. >> see you in two weeks. >> for a better year. >> yeah. >> absolutely. >> on many levels. >> thank you. >> all right. >> hopefully back in the hearing room at some point. >> and we'll get sandwiches. >> have a good couple weeks, everybody. >> thank you. >> thank you. >> president honda, are you adjourning the meeting. >> president honda: oh. >> no? >> he doesn't want to adjourn us. >> andrew furey: yes, we're adjourned. i apologize. >> thank you, everyone have a great night. thank you. >> thank you.

shop and dine in the 49 promotes local businesses and challenges residents to do their shopping and dining within the 49 square miles of san francisco. by supporting local services within our neighborhoods, we help san francisco remain unique, successful, and vibrant. so where will you shop and dine in the 49? >> my name is ray behr. i am the owner of chief plus. it's a destination specialty foods store, and it's also a corner grocery store, as well. we call it cheese plus because there's a lot of additions in

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