transportation code must base his or her decision on the transportation code and there is no room for those equitable discretionary actions because it's the taxi division that has the authority and that's what we need to preserve here. and just pulling that a little bit further, the appellants made the statement that the matters such as this haven't been enforced something like this for 18 years. can you react to that statement? >> i'm a late arrival in the taxi regulation. he's been with the m.t.a. since 2017 and i'm certain that there

has not been 100% enforcement and just like on the freeway driving 90 miles an hour with imputin and it's happened in the past and it's not happening now. >> commissioner: got it. that's it for me. >> director: thank you. we have a question from president honda. >> president: yeah. so going back to that, my question is as you said it took awhile and i understand your analogy of everyone drives 90 miles an hour on 280 and doesn't get a ticket. when you said it took awhile, it is now 2021. how long that's this been in effect and when did it take awhile and you said you're late to this particular case as well as philip cran says he came in 2017. but before your body this evening, did you not anticipate that question was going to be

asked how many cases prior have come up? >> no i didn't anticipate because i don't think it's relevant to the situation here because the m.t.a. taxi division has complete enforcement discretion and the fact that they did not enforce a law for a number of years does not make the law unenforceable. >> president: no. i understand that. but is there a particular reason why it's being enforced now? is it just that it just came to light or does this have something to do with the potential litigation that's going forward? >> as the enforcement manager, i was not aware of this and i was made aware when i stepped outside of my role and stepped into permitting role. so like i said in june 2019, i became aware of this situation. >> president: okay. so the current enforcement that's before us again is the potential that will be before us that does not have any effect on the litigation or the outcome of the litigation or the effect of the litigation,

is that correct? >> thank you. >> director: we have a question from commissioner chang. >> commissioner: thank you. i understand there's no room currently in the transportation code for issues regarding equity, but are there considerations being made before the board now and is that on the table for future modifications or revisions to the code? are you aware? >> i'm not aware of any amendments being continue plated to the code. the discretion and the equities are in the hands of mr. cran and the m.t.a. taxi division that's where the discretion and the taken into account the

entire industry and the best interest of the entire industry. that's where the equity lives and i'm not aware of any consideration to move that to another body the hearing officers who are removed from the day-to-day needs of the taxi industry. mr. cran is there and that's where enforcement discretion belongs. >> commissioner: right. but if the enforcement is bound by a transportation code and there's no room for that discretion in the code, then how does -- where does that discretion come in? >> like what room is there for someone like mr. cran to kind of employ that discretion? >> well, mr. cran has resources the same way the california highway patrol has resources and i think it's a very helpful real world analogy that say

makes decisions based on the best interest of the public and the industry as a whole and they direct their enforcement resources where they think it makes the most sense. that's the discretion. >> commissioner: thank you. >> director: okay. thank you. we are now moving on to public comment. so the phone number ending in 9970, please go ahead. you have three minutes. >> i think it's three minutes. >> director: yeah. three minutes. okay. try pressing pound 6. the phone number ending in 9970.

okay. we're going to come back to you. we will now hear from robert sesana. please go ahead. >> can you hear me now? >> director: yes. we can hear you. you have three minutes. >> good afternoon. i'm really puzzled by this whole case and i would like to support mr. horbal. i originally attended the hearing of the taxi commission in 2003 when you supported the decision that ms. rivera could retain her medallion and the similarity in these cases is very interesting because ms. rivera was in a wheelchair and

so is mr. horbal and the reasoning behind the decision was because of a.d.a. now, if we fast forward to 2010, that decision that the city attorneys are talking about was actually passed on to the nineth circuit court of appeals which the city attorneys don't want to refer to and the city of san francisco signed an agreement allowing the four people with -- that were represented by the national chair to have an option of either holding the medallion or selling that.

in 2010, the then director of the m.t.a. taxi division instituted a buy-back program for k medallion holders. and, the condition of the buy-back program was, you had to be 60 years old or disabled. and, this was because of a.d.a., the transportation code makes no account of a.d.a. and you cannot have any organization making up their own rules against a federal law. however, let's just go on a bit. after the --

>> 30 seconds. >> yes. after these medallions were sold, the m.t.a. started a sales program and many k medallion holders actually sold their medallions through the m.t.a. and this denial about value and everything depends on who's sitting on what chair and when. thank you. >> thank you. time. >> director: thank you. we will now hear from the phone number ending in 7554. please go ahead. i believe it's marcello fonsaka. 7554. try pushing pound 6 i believe. okay. we're just having some technical issues. you're muted. try pound 6.

marcello fonsaka, i see your hand raised. let me see. okay. the phone number ending in 7554. >> might work. >> director: okay. star 9 is raising the hand. they're unmuted now. >> hello can you hear me? >> director: yes. >> yes. my name is marcello fonsaka and i'm a prop k medallion holder. just so this board knows, the medallions acquired after 2010 through the now medallion sales program, the holders do not have a driving requirement just as information. my interpretation of the

applicant's pledge to drive full-time in problem position k does not translate into driving until you drop dead behind the wheel. prop k intended that real cab drivers got medallions. mr. horbal is the essence of a cab driver. he drove for 43 years. now that he can no longer drive because of disabilities that bind him to a wheelchair, the city wants to revoke his medallion. this is discrimination against a disabled person. very likely in violation with a.d.a. laws. revoking his medallion will send a chilling message to other medallion holders who are not fit to drive to comply with this miscodified driving requirement in the m.t.a. transportation code.

such policy is malfeasant. thank you very much. i urge you not to revoke his medallion. >> director: mr. fonsaka, when you unmuted yourself, did you press pound 6. >> i tried pound 6 and later star 6. >> director: okay. thank you. we will now hear from the caller whose phone number ends in 3265. please go ahead. >> good evening. >> director: welcome. >> good evening, board members. my name is charles speaking on behalf of the appellant. this is a case of the marine corps veteran with a perfect record in the taxi industry whose permit is being revoked solely because he has become

disabled. it is manifestedly unfair. the results of a poor requested ballot measure that was passed before the right of disabled peoples were establisheded. please send this back to the agency with instructions to update the rules. it's time to end the wildly swaying pendulum of tax and regulations. there were decades of nonenforcement followed by a quarter million dollars pay-out. so many prop-k medallion holders and now for others. revoking mr. horbal's permit does nothing to benefit the public. the sole beneficiary would be the credit union which is one of the largest corporate medallion owners in the country. its hundreds of medallions will inch upwards in value and other medallions such as mr. horbal's are removed from the pool of

potential sellers. that's why the credit union has complained in its lawsuit that sf.m.t.a. has not enforced the driving requirements. this revocation is an outrageous injustice. it robs impoverished individuals while providing no value to the public. please do not revoke mr. horbal's medallion. >> director: okay. thank you. we will now hear from dean nayhart. please go ahead. >> hi, i started driving a yellow cab in 1970. at that time, we had the union contract. we had minimum wage. we had paid vacation. we had pensions.

we had overtime. and since 1989, i earned prop k permit. and i have an exempted disability waiver since 1997 when i was made talking funny until last year. so for 23 years i have been afforded a waiver. a waiver good for 23 years, but not this year. that's very similar to mr. horbal. so i'm saying why can't the disability waiver given to mr. horbal last year be good

this year? i'm just wondering if you can employ your novists of the unit state its federal law regarding disability to rule in favor of mr. horbal and later of me when my appeal comes up. in the 1950s, a cab driver could buy a house in the sunset. a cab driver made twice as much as a bus driver and in the 1970s, a cab driver can make as much as a bus driver.

now it's an administration of the sfmta while hardworking cab driver might qualify for food stamps as a disability disabled cab driver with a prop k. >> 30 seconds. >> while in the soup kitchens and welcome to sleep under the bridge. this is because of the mismanagement of sfmta. certainly we can do our best this time for our citizens of san francisco and for mr. horbal and me. thank you. >> director: thank you. we will now hear from dennis corcose. mr. corcose, did you want to

provide public comment? okay. we can check back with you. okay. the phone number ending in 9293, please go ahead. i believe that's nathan swooery. >> hello. >> director: hello. welcome. >> hello. this is dennis corkose. >> director: okay. please go ahead. we'll hear from nathan after. yes. we're going to hear from dennis corkose first. my apologies. then we'll go to nathan swooery. mr. corkose please go ahead. >> hi there. my name is dennis corkose and i've driven a cab for almost four decades and i wanted to make some comments about what

was said. mr. cran has said the prop k medallions should be given back when drivers have stopped driving. since 1978, that has never happened. mr. emery said it took awhile for enforcement to take place, but once again in 43 years since 1978, that has never happened. have you never had a medallion revoked for not driving. usually, what happens to somebody when a driver received a medallion, they would work it while they could and then when they retired, they would receive lease payments for leasing their medallion out to other drivers. that was the value of it that was the retirement value of it. so in every way shape and form it was treated like a purchase.

it was never treated like anything else and whether or not the city enforced whatever rules that they're defining now as, that's almost like a mute point because if you have a property and you have thousands of people crossing it every day for 40 years, you develop kind of an easement and this becomes the rule of law. and this becomes the way that it is. you can't just come in one day and say, oh, well, we're not going to let these people cross anymore because we decided that, you know, that we don't want them to. so, let me just jump to the disability program. the m.t.a. has in place a disability program that gives permit holders three years disability for each ailment that does not allow them to

draw it. mr. horbal applied for this in 2017. there is no driving requirements in 2020 or 2021. >> 30 seconds. >> this is not appropriate to revoke his medallion for not driving or for not getting an a-card while there's no driving requirement. he has the right to file for disability for whatever reason he has. i was going to make some other points, but i forgot what they were. >> that's time. >> if anybody has any questions please. >> that's your time, sir. thank you. >> director: thank you. we will now hear from nathan weary. please go ahead. we heard you before.

phone number ending in 9293. try pressing. >> star 6. >> director: star 6. mr. dreary. okay. there seems to be a lag. can -- we can't hear you. so we will -- i see you now. please go ahead. you have three minutes. >> all right. thank you. my compliments to the board for their forbearance in all this time. in the 50s, i enjoyed splashing around in the sue trudeau paths and sliding around at the playland at the beach. in 19 synced 5, while in college, i started driving cabs

in san francisco. moving forward to 1990, i had the pleasure of being the present general manager of yellow cab for 10 years until the year 2000. i just want to focus and zoom in on these discussions about the transportation code. when the sfmta took over the regulation taxicab san francisco about 14 years ago, i believe, they got a clean slate. they could ignore the regulations. they could adopt propositionk or not. so all this talk about regulations and how they have to observe regulations, they like them, they enforce them, they interpret them. so this think about taking mr. horbal's permit away who by the way i've known for many years. this is the taxi division. the only obvious accomplishment is it's going to make mr. horbal feel it's going to

be a waste of his life by taking the last self-respect away in his life to revoke his permits they can also choose to leave things. they have the authority and option. i urge the board of permit appeals to once and for all take away the authority of the whole procedure. thank you. >> director: thank you. we'll now hear from the phone number ending in 1106. please go ahead. try pressing star 6. okay. i see that you're unmuted. please go ahead. the phone number ending in 1106. >> yes. thank you. my name is mark gruger.

i'm a san francisco taxi driver since 1983 and i have a proposition k medallion and i continue to drive although i have not been driving throughout the pandemic i don't want to talk about the substance of this issue, but i do want to talk about the process because i think there are some grave procedural flaws here and actually i believe that the decision that was made is unlawful and that has to do with the reconsideration after a decision was rendered in favor of the appellant. it was taken under reconsideration from all appearances only to undo influence, but however that came about, i do believe it is

unlawful. the decision had all the earmarks of finality about it. it went through all the various procedural requirements. in the end, a notice was served on mr. horbal in his favor and under the transportation code, that decision takes effect on the date the notice was served in. so to somehow redo that seems to me to be, you know, a violation of the transportation code and beyond that, very probably a violation of right to due process of law and to equal protections of the laws and so for that reason alone, i

believe you should grant the appeal. thank you. >> director: thank you. is there any other public comment on this item? i understand mr. dan heinz, did you want to provide public comment, phone number in 0577? press star 6 to unmute yourself. mr. dan heinz. try pressing star 6. okay. i'm not seeing a response of that this caller wanted to provide public comment. so, mr. heinz? one last try. press star 6 if you would like to speak. >> possibly star 9 would work. >> director: star 9. do you want to try star 9?

i thought that was just for raising your hand. do you want to try that? mr. heinz? . we could also call him. it's just because i have this name and phone number in advance. i don't want to prevent someone from providing public comment for technical reasons. [please stand by]

>> thank you allfor me today. my name is dan hynes and i'm the president of national cab company and have been since 2004 . and i want to try to give sort of context focusing on this agreement because i think that's critical to what we're talking about here. the city's decision to make driving and eligibility requirements created the drive

and drop policy where internment from the industry often threaten medallions with loss of driving income but also with the loss of their medallion income leaving them often with social security and even that less than available. drivers over the years often drove with skills and went so far as to create driving history. cab companies who were dependent on medallions for liability were under pressure to accommodate these strategies even though they carry goods for the cab companies as wellas the public and medallion holders themselves . in this context national cab having a number of elderly and medallion holders filed a lawsuit in federal court . challenging the city's right to

take medallions from owners who were no longer able to fulfill the driving requirement. the district ruled in the city'sfavor and cab with support from all the major cab companies the old .in this context plaintiffs were with the city to resolve the disability issue and also permit elderly medallion holders to exit for financial compensation for the surrender of their medallions . with the credit union as lender and the gaping financial shortfall from the 2008 recession as a financial incentive, stakeholders including the city crafted the medallion surrenderprogram . the terms of this medallion surrender program were accepted by sloan and the city as

defendant and by the appeals board as a resolution of the lawsuit. the surrender program granted disabled medallion holders of the three years exemption for a disability and allowed the disabled and elderly the option to surrender your medallions for $200,000 . >> could you hold on one second because you're running out of time. i'm going to ask the question, could you explain that so you can carry on with your time. >> caller: the city benefited by receiving revenues from both surrendering, surrendered medallions and also newly issued medallions. in a real sense that tens of millions of dollars of revenue the program generated was critical to the city for bringing the city out of its financial hole . the industry and city benefited from creating an exit for medallion holders and

importantly and conversely an opportunity for those wishing to become careerdrivers to invest in the industry . it should be noted the set price of $250,000 was considered well below market by the based on the revenue that an italian holders received. and i'm happy to answer any further questions but thankyou for this opportunity . >> president: anyfurther public comment on this item ? pleaseraise your hand . i do not see any further publi comment so we will move on to remodel . we will move on to mister horbal. you havethree minutes . or mister mcnutt are if you're speaking for him please go ahead. >> thank you. i could take an elephant the chest right now.

in this tom: letter i personally think the deputy attorney: add professional misconduct when he did this but i think it's numbereight , i circled what owen advised the taxi commissioners about trying to make a requirement. he puts in the first line prop k requires permit holders amendment 3.and then the word invades. that indicates missing languag . one word is missing and it's the word to. commissioners would have looked at the law that says no permit shall be issued unless the person applying for the permit shall declare under penalty of perjury his or her intention actively and personally to engage in permits to drivers

under any 24 hour period.he tricked the commissioners into believing the law read that you had a mandatoryrequirement to never stop driving . it does not say that . it says leave the applicant swears the intention so i'd like to quickly go to what happened in 1988 when this got codified with the municipal police code and i'm holding up one of the documents i sent in . it says that the permits can be revoked for good cause and it says subsection 1, the permit fee ceased to be a full-time driver and later says it's mandatory, not discretionary to revoke or suspend when someone quits driving. that is an absolute miss codification. that's changing the law.

i wasn't active then but swearing the intention to drive means you have toconsider the intention . it's a funny way to write along . mister owen tricked these commissioners into believing it's not a law. he's lying,basically this is an outrage . there's somethingelse i was going to say. i'm going to lose it here . mister emery made some comments and certainly there's plenary authority clause that the city can't change laws or ignore ada and that is in where the city talks aboutcontemplating that people would turn in their medallions . one of the documents i think it's summary 12, the receiver of the medallion, these people were 75 years old when theygot the medallion how are they going to turn it in ?

>> president: we have a question from president honda and vice president swig. >> president: is that a real behind you? >> these the rack by the way. looks horrible. he appreciates the work i'm doing butthat's a stuffed animal . he's a virtual cat and he looks like mybeloved apollo . >> president: vice president swig hasa question for you . >> vice president: i think this whole thing is verydifficult and i'm saddened that mister horbal is in this terrible situation . but the thing that's bothering me is these rules and

regulations seem to whether we like them or not, and you can tell i don't like them very much, kind of tied the permit holder it seems in knotsbecause i want to ask you a question . let's say you're able to hold on to this permit if we said tonight we want to let mister horbal hold on to this permit . what is the value of this permit because we've heard testimony from the city that the permit can't be sold. it's a permit and that's why i purposely asked the question with a reference to getting a permit .

i got a permit, i can't turn around and sell it to somebody else . and in this case when i asked this question, can you sell the permit and the answer from the city was unfortunately no. so okay, tonightis mister horbal maintains the permit , what good is it? because unfortunately he can't drive anymore and the city says you can't sell the permit so what value does it haveother than the fact that you get to tie up a permit ? >> that's fair but he committed his entire life to getting this permit so again, if uber starts tanking and the value comesback , for his career commitment he will get some money per month, might be 300, 500,value is coming back . not being able to sell is a

technicality . as he pointed out, the city became an intermediary in the process because we don't have a property right and this surrender for consideration which is compensation of $200,000 , that's tantamount to selling . this was, when this situation came up, the number of interested buyers lately outweighed the number of sellers and it's because we purposely set the medallion as being worth $250,000 whereas on the open market it would have sold for 400,000. a lot of us did not want people buying these because they get underwater with an artificial bubble in new york and we want them to make enough money to pay back their loans and have extra money for having bought it but unfortunately uber and lyft came flooding in and took

away almost all the value. this is a surrender for $200,000, it's like selling it to the city technically as an intermediary. >> president: thank you. >> thank you, we will now hear from the sfmta. mister emery, you have 3 minutes. >> he's not here to defend himself against theaccusation . he's the most scrupulous, careful lawyer that i know. he's retired from the city attorney's office so i hopethat accusation doesn't carry any weight here . the question about whether prop k imposed a driving requirements, whether the current regulations, of course

the courts have already decided they do and the mta submitted those twocases . both of those issues are directly and carefully analyze by the courts. so there's no ada compliance issue with mtas regulation. and the driving requirements is valid. consistent with prop k and doesn't even have to be consistent because of the authority that we've already discussed today and prop a. that's all i have to say. >> are youfinished with your time ? >> briefly if my idea is that stillokay . this effort took several years to get before you. now, numerous notices and a

good portion of those medallion holders secure their issueso all the issues , others turn their head and others appealed and that's why we are here today. but the transportation code dictates the rules governing taxis. 1303 is a post came italian and the holder of that medallion needs tohave a name card, that's why we're here . if i, if this medallion is renewed, that does not serve the issue that mister horbal is out of code. code requires him to have. [inaudible]. simply put the code dictates this medallion is out of compliance . >> thank you, we have questions from commissioner lazarus,

commissioner lopez and commissioner chang . commissioner lopez. >> i believe i'm directing this to mister emery although i'm not sure if it's a legal question but i don't understand how you could have sort of a business based on an intention. in other words saying that you intend to drive and then never drive, how would that work ? >> that's one of the words in section 10 to a. prop k as a whole is based on that intention. prop k as a whole as analyzed by the cases i keep referring to is it self-imposed on medallion holders. i agreewith you 100 percent, you can'tbuild a business on intentions . >> thank you . >> commissioner lopez. >> for mister crenna, can you

tell us if the agency, you just referenced a number of different types of enforcement outcomes. prominent holders being identified for enforcement, either revenue or issueswith their permit or a feeling or surrendering a permit . does the agency keep statistics or any type of data on the types of enforcement that are pursued? specifically with respect to this type of medallion on the grounds of not having a valid pdl? >> yes i do butunfortunately i don't have that handy . but we are tracking the whole efforts. it was originally mailed at the endof september .

2019 i think it is so they were mailed out in a inverted funnel so there were many letters sent out. [inaudible] >> i think we lost a bit of your sound there. >> to the best of my recollection there were about 300... >> your audio is not working, sir. do you have another light? >> i don't, i'm sorry. >> could you repeat that again? >> to the best of my recollection there were 250 notices and about 50... [inaudible] 200 medallion insider secured.

>> is it me or is it cutting out. >> it keeps cutting out. >> he can take off his headset and mute his computer. >> does that work? >> that's better. >> perhaps it's the jack. now you are muted. you are muted now. >> i thought itwas me getting old . >> i apologize. new world. i can turn my volume so i can hear you. there were between 250 and 300 of these notices sent out and also between 45 and 50appeals that were heard . >> and to the best of your knowledge, the 250 notices, that sounds like if we were to hearyou correctly , that was enforcement, those were enforcement notices that were sent in calendar 2020? >> let me pull up the letter.

i can say they were all sent within a day or two . >> i'm trying to understand how far back would that type of enforcement activity go. is it something that goes back decades that we would have to potentially have data on or is that a very recent kind of type of enforcement activity that's been participated in bythe agency? >> it's a recenteffort by me and it's upon renewal .once the permit is renewed , then you'd have torevoke. this was done as part of the removal process . >> but for the appellant, if i remember correctly is enforcement activity began several years ago.

>> i don't understand what you mean. >> i may be wrong but doesn't his, didn't his initial enforcement activity began in 2017 or something? >> i got hired in 2017. >> i totally understand and know you've recently joined. i just joined this body so i'm sympathetic to that but does the agency keep track of those types of enforcement metrics back to before your time? >> i believe there would be old medallion files but also the body thathandles those units are available online . my understanding is prior to this it was run similar to this through some different era if

you will. similarly composed body and even in a similar way. there are minutes are still available online, i don't have exact numbers but the taxi commission has spent time enforcing a driving requirements and amongst other compliances. >> that's it for me, thank you. >> commissioner chang. >> thank you. i think it would be helpful to hear from either mister connor or mister emery to speak a little bit about the enforcement program more generally. i understand your enforcing upon the request of renewal but i think what's tricky and challenging for the commission

and this body is that there's been stated empathy for the past industry, especially with all of what has occurred in recent years with the emcs or lyft and uber and then you hear about these stories and a lot of public comment regarding the livelihoods and the commitment thatdrivers have made .but there's no reprieve or relief from this. and again, we heard that if the permitis revoked , and i don't fully know the details but. there's no monetary value to it but on the flipside, if the permit is revoked and it's retained, can you share what harm there would be for someone like mister horbal to get his permit even if it's for just good conscience to uphold honor and just that comfort of

holding that permit. that's my first question and i have a couple follow-upsafter that . >> it would be in direct violation. [inaudible] it would be a violation of theterms of the permit . best example i can think of is if i'm putting on a concert and someone says you have to have permit to sell alcohol and i sell alcohol i'm in violation of the permit . and i should also add it is a core elementof the permit . one of the central requirement , one of the central reasons whywas granted . >> one of the callers stated their ability to file for

disability and for each disability that could last three years. is that true and if that is true with that apply to mister horbal? >> that is true, there's a board policy that goes to what you would refer to as medical modifications but what we're hearing today is based on the fact mister horbal does nothave the apartment so although they are related , code requires mister horbal to move from and policy would allow him to keep on driving with temporary disability. that policy also says it only applies to temporary, those who are permanentlydisabled are not eligible . . the mta board resolution 09 18.

>> thank you. >> that piece that he is talking about. >> commissioner chang, did you want them to clarify? please go ahead mister emery. >> that question of the mta board resolution is quoted on page 6 of the mta brief, that's all i was going to say. >> thank you. i believe president honda, did you have a question or no? thank you so commissioners this matter is submitted. >> president: which commissionerwould like to start ? don't all jump inat one time . >> i'll go ahead. or did you raise your hand? can't hear you.

>> i'm not surei want to . i think we're all feeling at least i am feeling the unfortunate nature of this situation where an individual has dedicated many many decades to his craft and has the anticipation that and expectation that there will be something at the end of the rainbow and then unfortunately is told the pot of gold at the end of therainbow is featuring only an empty pot . andthat's really an unfortunate thing .and we are all incredibly sympathetic and probably saddened by that as we all are. and, but we are strapped with

the same old thing which is there is some clear rules it seems and i look forward to ... that's my interpretation that it's a permit. the permit is terms and conditions . the conditions can no longer be upheld by the permittee. the permit holder. and as a result, the accountability is that the permit is no longer valid and must be withdrawn. but that's just the cold hard facts that makes me want to throw up. but that's where i am and there are a lot of other complexities here related to some ada issues which were not on trial here

today or the lack thereof but there are those of them that have been heard and tried and that resolution has been made on that issue but i think keeping it very clear, the permitwas issued . the permit has unfortunately not been able to be upheld and now the permit is being withdrawn because of the terms and conditions of the permit and unfortunately it involves somebody's life and hardship and that's really sad but that's my point of view. >> president: commissioner lazarus. >> i've come to the same conclusion run reluctantly aswe all would be . in the case of what for us i don't think there's anyoption but to deny the appeal . >> i am on the other side of

this. i think that we have an aging taxidriver association as we now heard from the people that were before us and i think although there's rules and regulations that are in regard forthem to drive or not to drive , it flies in the face of disability. do i want somebody that's continuallygoing to drive whether or not they're able to because they're trying to maintain their license ? no, i wouldn't want my daughter or wife or son in a vehiclewith someone who's forced to work because they're going to lose their likelihood after 40 years . i think it's suspect to me that there have been no cases before that i've heard and that the city attorneys for the sfmta representatives could not speak of anything specific but yet there are pending cases before us.

>>. [please stand by]

>> president: i understand if we don't have the data at our finger tips today and i'll go back to say and the agency's position i think was really well articulated by mr. emery and mr. crana, but one area where the analogy to a speeding ticket, you know just doesn't sit well with me is, you know, speeding ticket doesn't often result in a disabled senior losing their livelihood and, you know, if we have, you know, if there's any, you know, chance of selective enforcement whether that's due to whatever officer, you know happens to interact with the permit holder on that given day, you know, whether it's some external kind

of, you know impetus, i think the public speakers are pointing towards, i think that should be something that we should examine more closely, i think. if we're going to operate within the four corners of the transportation code. in one of these if i had the abilities to balance equities here or i would continue to balance the case, but the transportation code doesn't give that out, right. but i think if this is the denovo review, i think we do and i think we at least have the ability to continue the

matter and until we have a better, clearer picture of what the enforcement activity has been. and it also sounds like this pending case, while it may not be squarely on point, it may also create some liquidity opportunities potentially for folks in the appellant's position. that may completely remove the necessity of even here cases like this if those folks suddenly have the ability to. and, i understand the technical question of it's a permit and it can't be sold. you know, at the end of the day, you know, i think for all intensive purposes, people understand this as a permit whether it can't be legally sold or not. at the end of the day, you end up with money in your pocket when you exchange it and it's part of a program which the

city created, which the agency created. so i think in most peoples' minds including i'm sure in most of the permit holder's minds, they understand that as a path to liquidity as a patch of sale or compensation and, if that, if the gears of that machine are clogged up and potentially could open up with this pending case, i think that's another factor at least in my mind for continuing, you know, so that we can get some data on how enforcement's been carried out and see if there's another potential out here. >> thank you. i believe commissioner lazarus had her hand up first and then commissioner chang. >> commissioner: i don't believe that what may or may not be happening in any other case is necessarily pertinent

here. we have a set of facts in front of us involving this particular individual and that's what we're being asked to rule on and i don't know what kind of data we could gather that would indicate any different outcome potentially given the law, the regulations, and what to me is applicable to this decision. so i don't -- i appreciate that perspective, but i cannot subscribe to that particular approach and if -- i don't know whether it's worth asking mr. gibner to weigh in on that in terms of the parameters for this, but if it would be helpful, i'm fine with that. >> president: commissioner chang and vice president swig.

>> commissioner: thank you. my sentiment aligns very closely with. >> commissioner: lazarus. to analyze the case squarely on the four corners of the transportation code, it is very clear ask and it does very much feel like stripping a sense of stability and livelihood away from an individual and i heard that there's no pending code amendment that you're aware of and i am also -- i acknowledge that it's a bigger picture of

how m.t.a. is suggesting its equity. it's actually in consideration of the bigger ride share economy and its implications on taxi drivers more specifically and, for that reason, i think i'm equally struggling with making a decision based on this very black and white narrow case. and i wonder if there is room to explore kind of layering on some sort of equity consideration. i know that outside of what this board has the ability to do but that's kind of my

sentiment. >> president: vice president swig. >> commissioner: i wouldn't mind postponing a decision tonight to having one of your first questions answered, darryl, which was to council when you said okay. well, in the past we did this and there was no answer. and, so, i don't like -- i'm sure counsel is right or is basing it on his understanding of fact, but i think that would be interesting to know about a past procedure and precedent and stuff like that. i'd like to know that that history and the whole accountability piece. i think that would be very important from my education at least on being able to move forward in case we have another case like this and so i wouldn't mind kicking the can

down the road. but, again, i will raise the issue so what? so what? there's no prescription for equity here, it's a permit and if we find for the appellant, the appellant winds and the appellant wins what? the appellant cannot sell this permit, that has become very clear. so we can rise and show we are synthetic it will make us feel god, but it won't do any good. i just want to put that forward and i really want to hear, i

like that extra piece of information. what i conjecture and maybe if we are going to kick this one to a later date, i'd like -- i'd like counsel also while they're doing that history to clarify something and i want to see this elegantly instead of in an accusatory fashion. i smell the smell of benign neglect and i smell that what we have is a relatively new attorney on the case, and sheriff in town who's done his job and is holding permit holders accountable for the terms and conditions of their permits whereas potentially and this is what i smell his predecessor didn't do such a good job. so here you have somebody who

is trying to do their job and that's why we're here today and it's just very possible that we'll find that the predecessor didn't do the job so well. so maybe the city attorney wants to keep that in mind too while they're doing the research. i was -- there have been a couple analogies. the 280 freeway analogy with speeding and then the other side said, well, it's like, everybody used the same pass over a bunch of years over somebody's property and so right there, they created an easement and so the next owner of the property, they can't claim an easement. they can't claim there's no easement because there's been a regular use of this path. that doesn't create an easement and it's just that an owner

held that -- the new owner said, "no. you can't come on my property." so let's keep our analogies a little bit more -- it's just watch out for our analogies, i think. and i'm the worst at it. thank you. >> president: okay. so i know commissioner lopez has his hand up. it looks like with my vote, we have three votes to continue and it looks like vice president swig will continue as well. but i am thinking of commissioner lazarus. we have to be very specific on what we are continuing it for and what we can actually gain from continuing this. i personally am not supportive of the revocation from what was presented today and from what orally and written. so, i'm sorry. go ahead commissioner lopez. you can your hand up.

>> commissioner: yeah. thank you. you know, i'm with vice president swig on the interest for that underlying data. i'd say in my mind, it's relevant particularly since it sounds like we may have more cases like this coming up, but it's relevant in the sense that it'd be helpful to understand, you know, what size of the enforcement kind of men these types of cases, you know, will have, right. are a lot of these cases ending up with a situation where disabled seniors are having to surrender permits. i think that, you know, that that could potentially color our thinking in these types of matters and it sounds like we

haven't had many, you know, at least in the recent memory of other commissioners. so i think it could be helpful contacts for these types of cases if we're going to have more of them. for me, it's helpful in this one in particular. i think to that end, you know, for any motion to continue, i would ask that the agency -- >> president: hold on one second. would you like to make your first motion as a commissioner on the board of appeals to continue this? >> commissioner: let's do it. i'll do that. before i do. i'll ask mr. crana if we can just get some input on how long do you think it would take to, you know, compile this type of information and i think the information that i'm seeking like i said has to do with at least for the instant case here, you know, for this type of permit, you know, being

denied on this basis, on the lack of the c.d.l., you know, what are the numbers on that pattern as compared to other general enforcement activity and, you know, it'd be great to go back to even to the beginning of as far back as we can if possible to the beginning of the creation of this permit with that c.d.l. requirement. >> i will have to research paper files since [inaudible] when the taxi commission, regulated taxis prior to 2009 when m.t.a. was -- my assumption would be when the medallion was revoked. that paper file was placed in storage and so it's not anywhere in my files. the agency did not exist prior to 2009. so that won't involve frankly

-- unless i can find some sort of other record of it. it will likely involve -- so. >> commissioner: so basically the question is how long would that take you to acquire those files? because if we are going to continue, you know, we'll have to continue so that you're able to comply the information that this board is requesting. >> at the very least, i would say at least 30 days. >> president: okay. so how about 60 days? okay. does that satisfy your question, commissioner lopez? >> commissioner: it does. i think, with that, i move to continue -- >> commissioner: can i interrupt you just one second. i'm sorry, i'm going to support your motion, but i just need that -- before we get ourselves in a mucky in the weeds as you say, i need to ask our city

attorney something. and who is our city attorney today? >> director: for this matter, it's zack pourianda. >> commissioner: okay. so zack, we are anticipating, we've heard testimony today, a rumor that we're going to have another case that is similar to this and they rely on the same data that the -- your associate city attorney representing the city in this case is going out to research. i wouldn't want a case that put us in the same direction to come up without this data available. this is the nature and reason why we are asking for this to form a decision until later. so what do we do about that?

can we look down the agenda, future agendas and look for cases like this or that cases that may require the same information and proactively postpone those? what do we do? or else we're going to -- if we don't, then those cases, i don't know that there are or are not cases. i just heard a rumor testimony that those cases are coming. but if those cases came in front of us and we need the same information, it's sillily because we would have to postpone a decision on those cases too for the same reason. so that's why i see that we're a little in the swamp eventually. >> president: your recommendation counselor. >> i would say it falls within the jurisdiction supporting

rules discussing the rescheduling. i think it would be up to the president working with the executive director to determine which cases can be continued on an administrative basis. >> president: okay. >> commissioner: so the recommendation therefore before my fellow commissioner made which i'm going to to support would be the advisory that if, in fact, this anticipated motion does pass, that the executive director and the president should be mindful of any forthcoming cases that may be required to share this forthcoming information and therefore be postponed after we reach resolution upon this case or at least hear the information that we are requesting on this specific case. okay?

>> commissioner, apologies. i just want to interject one more time. you can also ask the parties to consent to that. that way, they may be willing to consent if that information would be relevant to their appeal. so there's that step you can take as well. >> commissioner: okay. what would -- i don't have an opinion one way or the other. i'd love to get you to give me some recommended direction, please, on behalf of the board for the board. >> again, it's an administrative decision. so before the authority to continue those cases. >> commissioner: so we don't have to get into discussion and waste time. just, you know, as we move forward, this process to hear the recommendation from my fellow commissioner, i would like to have the executive director and the president consider the ramifications of

this motion on immediately future cases. thank you. >> director: vice president, we do have a case scheduled for september 22nd that is a similar case, so -- >> commissioner: so therefore, it's going to take 30 days, 60 days between 30 and 60 days to gather this information -- >> president: i get what you're saying, we should postpone the hearing coming up? >> commissioner: exactly. >> president: well i get fearful. i don't want to say the wrong thing. i was like what is he. i get it now. so, yeah. the executive director is always amazing and i'm sure she will consider this and to my fellow board members. i see the deputy city attorney with his hand up. please go ahead, deputy city attorney. >> just one more suggestion.

anything that you order one of the parties to file, the other party should have an opportunity to respond just in terms of due process. >> president: yes. we're aware of that. thank you very much for all your advice and council, sir. i think what's come before us as vice president swig mentioned, you know, his predecessor, i think it was his predecessor's predecessor's predecessor. i think if we are going forward and have similar cases before us i think it would be good that we get that information before us. okay. go ahead. sorry. >> second that motion. >> director: can we clarify -- go ahead commissioner chang. >> commissioner: i was just going to. so i think what i heard the deputy city attorney recommend is that we ask the poets, the appellant if the proposed continuance is something they'd be okay with if i understood

him correctly? >> president: i didn't get that, but that doesn't make sense. so on that. >> commissioner: did i understand you, correctly, mr. portianda. >> you can do that for this case as well as the cases that are up coming. >> commissioner: got it. >> president: so i'll ask another question unless the executive director would like to speak first. >> director: i just want clarification on the information you're seeking. >> president: i guess we're going to ask mr. horbal and his representative mr. mark moredo. if what we're representing goes through, are you willing to come back in 60 days? is that acceptable or would you like us to render a decision this evening? >> that's fine with me and at the same time, i happen to be the agent in three weeks for

james portasis. julie can arrange that. >> director: that's very convenient. thank you. >> president: and do we need mr. horbal's approval. i know he had some technical challenges getting on initially. >> director: mr. merdo is his agent. >> yeah. he's fine with that. >> president: then we will make it very clear. >> director: let's clarify a date as well. since we're going to have to. you said 60 days, so november 17th i know it's a little more than 60 days, but we have a cleared calendar. we're very busy. >> and, we'll be in person at that point i believe. >> knock on wood. >> director: we shall see. >> president: we get to see everybody. so commissioner lopez, you want to go ahead with your first motion. >> commissioner: yeah. before i do, i guess i would ask, it seems like a bit of a

tailored, you know, research report for the purposes of these decisions and i know i outlined what would be helpful to me, but i just wanted to make sure that if any other commissioner had, you know, other data points that would, you know, also be helpful that those get included in this request. >> president: i think you'd like to make your motion and if anybody will add onto it, we genuinely make communal motions on the spot. start with yours, sir. >> commissioner: all right. so i'll move that the current matter gets continued to the november 17th hearing to give the agency time to put together the materials that we discussed related to enforcement specifically with respect to this type of medallion being denied on this grounds compared to the numbers of other enforcement actions preferably, you know, back to the creation of this type of medallion, but,

you know, at least as far as electronic records would allow. >> president: anyone else? >> commissioner: is that sufficient? i think that's fine. i just want any actions that were done for this specific reason of someone that's unable to drive because of their disability since we have similar cases coming through. so hopefully we won't have to do this on the following cases. >> director: so it's not necessarily because of their disability. it may be because they didn't have a driver's license or an a-card do you want to clarify. >> president: oh, yeah because they didn't have their a-card or c.d.l. >> commissioner: that's what i heard him say, yeah. >> president: thank you "v.p." >> director: okay. so we have a motion from commissioner lopez to continue this matter to

for the regarding the number of medallions that were not renewed because the medallion holder did not have a california driver's license or an a-card and you wanted information relative to other enforcement actions as you said, correct, commissioner lopez. >> commissioner: that's right. >> director: okay. medallions have been going back prior to 1978. do you want to set within the last 15 years or to the best of their ability? >> commissioner: yeah. i think to the best of their ability -- >> president: sorry to interrupt. since prop k was mentioned. to the best of their ability. >> director: prop k was issued in 1978. >> president: so be it. 1978. >> director: just enforcement actions that were initiated.

>> president: correct because the department has stated that there's been prior enforcements that are similar to this, so we'd like to see where those enforcements were. >> director: okay. and can we clarify too because you said that medallions were denied or not renewed, but what about enforcement actions for revocation. in this case, this came up because they at the renewal time and they failed to renew which can amount to a revocation. there are other instances where there's enforcement where they affirmatively go out to revoke medallions. did you want that data as well. >> president: i think it's just revocation to drivers that are unable to fulfill their responsibilities as a medallion holder. is that sufficient? >> director: okay. >> i think it should include both revocation and lack of renewal. >> president: okay.

>> director: and, based on not having a california driver's license or an a-card. >> president: right. >> director: okay. and other enforcement actions. i'm just trying to make it clear for them so they know what to get. >> commissioner: yeah. i think we want specific numbers on, you know, the lack of the a-card or the c.d.l. as compared to other enforcement actions for revocation or lack of renewal. >> director: okay. so -- >> commissioner: and, then in terms of going back. i also don't want them to boil the ocean. sorry. i'm sensitive to the you know, prop k date. so i would say, you know, reasonable efforts going at least as far back as electronic records allow. >> director: okay. okay.

but you would like -- okay. you'd like them to go back to 1978, you understand there are some limitations, but at a minimum, they need to go back to when records became electronic. >> commissioner: right. >> director: okay. so on commissioner lopez's motion to continue this item to november 17th for the reasons he just enumerated, commissioner lazarus, [roll call] okay. so this motion carries 4-1 and the matter's continued to november 17th. >> and ms. rosenburg, i will not be here on november 17th. my plan is not to be here. >> director: okay. >> you know, if it's important to my fellow commissioners, sorry. i just looked at that. so if it's important to my fellow commissioners, there

might be an alternative date. i don't care one way or the other. i know they can handle it wonderfully well. i just want to point that out so i'm not accused of ditching them. >> president: i just want to go with you, but other than that, i think we're okay to be honest. >> director: okay. >> president: you know, when this is set, does any of the commissioners need a 10-minute break? >> commissioner: yes please. >> president: okay. perfect. >> director: okay. thank you everyone. we're going to take a 10-minute break and we truly appreciate >> director: september 1st, 2021, meeting. 345 fuloveton i3 lp appealing the denial july 14th, 2021, of

an application for an exposure variance. dwelling units to an existing 28-unit building. one of the a.d.u.s is proposed at the front of the building and one is proposed at the rear of the building with the glazing facing onto the rear yard and two of the proposed a.d.u.s are propose with glazing facing only an interior light court. the zoning administrator is allowed to grant a waiver for reduced exposure for an adu of qualifying spacen open area less than 245 square feet in size. two has no horizontal dimension and three is open to the sky with obstruction of instructions outlined in section 140. unit two and unit three are proposed to face a light court that does not meet the standard requirements north reduce

requirements for adus. therefore, a variance is requireded. the project does not meeting findings described by planning code section 305c. this is case 2020-010606. >> good evening commissioners. it's nice to see you. it's been awhile. as you know, over the years our in the last five years since the program was produced, we've created a team of 500 people and we're proud of that. it's not just about quantity, it's about the quality of the

units. because we are such frequent fliers, we're very well of the constraints and the challenges in sometimes the literal enforcement in the certain codes. exposure is a challenging bar to meet for many adu projects, but we pride ourselves on achieving it in the vast majority of our projects. we're ambiguous are also aware the building administrator takes these types of projects very seriously. and we've probably brought two of these cases before him and only cases we felt were exceptional and unique circumstances. one was shown not to appeal and when this variance was denied, we advocated strongly for our client to file an appeal. the literal size of the exposure is a 9' by 25' exact rectangle with no deviation. while the two yunts we're proposing and discussing do

have an interior light pole, that light pole is 50' long. there are two bay obstructions above that stick out the length of a ruler, 12" and section 140 of the planning code are not permitted deemed obstruction. only chimneys and fire escapes are considered approvable obstructions. the exposure code whether the courtyard is large in landscape and space and it doesn't take into consideration things like tall ceilings which these have. and it doesn't take into consideration where the obstruction occurs and, again, in our case that bay extension is just 12" and occurs almost 13' i believe above the courtyard we're creating.

it also doesn't take into consideration what's on the adjacent property and in our case, the light court we have is adjacent to the property. the administrator does have the ability to grant administrate eve waivers in case the deviation is less than 10% which in our case we're far below. these little bays stick out and sections of the bays that impacts those two units and, also, you know, when considering adus it is within his jurisdiction and authority to grant the variant if there will be a reduction. in our case, we would lose one unit and end up with two large bedroom units which would not be affordable for the adu program. in addition to that, i will just add, let me just see, the building code does require, doesn't have certain requirements for light and ventilation. it's not the same of the planning code.

the building code and the california code and the san francisco building code would allow a courtyard of 6' by 15' and, again, we have 9' by 50' and as well increased by the mirrored property on the opposite side. so we strongly hope that you'll support our project. i believe you all have our brief which includes the diagrams and images of this. i'm happy to share those if you'd like, but in the nature of time and the length of the evening that we're all facing, i think i'll just stop there and i'm open for any questions. >> director: thank you. we have a question from president honda. >> president honda: , i just have a quick question. so in your brief, i'm looking at the picture of the light well and looking at the front of the property, evidently, they have the same color scheme and windows. are both properties owned by the same landowner? >> yes, they are. >> president honda: thank you.

that was my question. >> director: okay. thank you. we will now hear from the planning department. >> thank you. good evening. the subject property of 345 fulton street is located with the m.t.c.3 zoning district. it's presently developed with a five story apartment building containing 28 dwelling units constructed in 1926. the lot is approximately 39' wide and 137.5' deep for a little more than 5,300 square feet of lot area. the proposal is to add a total of four adus to the subject property however only two are subject to the variant that is before you on appeal. the other four units, unit one faces the rear yard and it

would be ehling because it's not less than 9' in any direction and it's open for that area so units two and three are in the center of the building and only face on to the courtyard. it is noted that the courtyard wall to the main wall of that level to the side property line is about 9'1" and it otherwise meets the area requirements, however, it is above, it does not open to sky above because of the bay windows which diminished the clearance of 3.8". this is not eligible under planning code section 305. it does state that less than 10% from the requirement. the zoning administrator may

then continue to administrate the variants to another hearing. that's the standard code requirement. in this case, in order to have code compliant exposure, you generally need to face on to a code compliant rear yard which in this case would be 25% or a 35' depth which this does not have or a 25 by 25 area of a courtyard depending on the height of the building it will increase to 30' to 35' and lastly facing on to a public right of way or street at 25' width which it doesn't. so that's the standard we're looking at when we're viewing the 10% deviation. the planning code does allowed for waiver from the standards to be granted reducing it down to what was already mentioned

and the instructions that are here would make it ineligible for that waiver. the proposal is not compliant, so therefore the variances required and to think this is not the first of the appeals the board has heard. most recently last year hearing one for a similar appeal for 2727 natoma. the zoning has been fairly consistent in denying these requests if you take the exposure requirements very seriously. the exposure requirements have been reduced actually twice for adus. the initial adu provisions reduced the original requirement to 15' by 15' in open area and it was allowed to greater flexibility of the current standards because this whittling away. the intent was not to have standards for exposure.

that could have been something that was added to the code, but that wasn't the case. so you have to meet all five findings in order to grab the variants for this requirement. and i know that it's close, but this is already a reduced requirement from what a new standard unit would have to have exposure to a much larger area than what is proposed here. and, you know, we do appreciate the work that this project sponsor architect has done on past adus and they're very well versed in how to make those unit haves all safe quality units, but we feel this is just a step too far for the exposure requirements. i believe that there was at least one neighbor or i think even a tenant of the building and opposition to the project that expressed concerns at the hearing, that they had some concerns with noise during and

after construction i think they intended to participate tonight, but were unable to stay to this hour. in the past, we look at what is development of a site. this is an existing lot that has 28 deadly weaponing units. two of those can be approved under current code requirements. the variance is sought for those two additional units beyond that. i know we think the 30 dwelling units is still an appropriate development for this site and so it didn't meet the findings outlined in the variance, we didn't find there was a hardship here which this is an essential lot that's essentially developed that the exposure requirements have already been significantly reduced even though it's close, it's facing onto the flight well, the ground, the five-story building and didn't find that met the hardship

requirement in terms of, you know, kind of comparable standards. you know, everyone else has to meet the code requirements and been consistent and denying similar requests and i think the board has maybe been a bit mixed in terms of hearing these cases. i think the last case upheld the denial. i can't recall how the board may have acted on others, but as generally has and shares those concerns regarding exposure. let's see. you know, appreciate the appellant's brief in the matter, but i don't think they really went into detail of the findings. >> 30 seconds. >> this is the hearing on the variance. as outlined in our decision letter, we felt that the five findings have not been met. so, with that, i am available for questions. thank you. >> director: thank you. we have a question from vice

president swig. vice president swig. >> vice president: so there are two units in question regards to the variant. is one of the units was closer than the other one as to closer to the line of of being variance acceptable versus the other or are they both in your mind equal? >> they were both denied. i don't think there was any indication that one was better than the other. the fact they're both relying on the same area for exposure and that wasn't acceptable.

vice president swig vice president swig. >> unit three is 633 square feet. there was a smaller unit at the front which is not subject to the variant. that is 371 square feet. >> vice president: and that's not in question tonight? >> correct. >> vice president: okay. my biggest concern, the highlight of my show at the moment is that it's precedence setting and you know i'm a stickler on that. i don't want to -- i don't want to set a precedence tonight that will come back to haunt us next week or the following week or the following week. and also, the five findings, i didn't see there were as close as you indicate they were as acceptability to the variants. but more back to the exception

piece and the deviation from what is acceptable as far as the planning commission. i'm sorry, the planning. where are the -- where are we subjecting the planning department to risk as far as setting a precedence with these two units? >> the board is hearing this. this would be the board's decision on the variance and you need the facts and findings the board would make on this. the concern, the deputy administrator has taken the approach that we've already reduced this multiple times and even if it's kind of close like this, it's not going to be appropriate. so i think, you may then have more appeals to the board about

similar cases assuming there's similar determinations and just to make sure i may have misspoken earlier, we agree the findings aren't close and none of the findings have been met. that's the department's decision is that none of the findings have been met those two proposed adus don't satisfy the exposure requirement. there's no hardship. none of the five findings justify granting a grant to allow those units to be created with the sub standard exposure. >> vice president: yeah. that was my surprise in that -- i mean, normally when we hear variance, okay, we're missing on one of the five findings or two of the five findings, but this one is 0-5 as far as getting one of the five findings in this case. i mean, you know, you've got to reverse five separate points of view right now with regard to the planning department, but i want to -- you're dancing on me

a little bit so i can be accusatory. but i really want to understand what in these units would come back to haunt us specifically? don't give me a macro, please. give me a specific. what do you feel that if we move these forward that next week, the week after, the week after, somebody would come back and say, hey, you ruled this on this case, so where is the most, or the most potentially explosive or the one we're going to be held accountable for and we're going to regret it forever and ever piece of this item? >> you know, variances are discretionary authorizations. they're different from interpretations of the code. so providing that your

determination was just that you disagree and you think that the five findings have been met, it doesn't necessarily establish a precedence. the zoning administrator would still have the discretion to deny variances in the future and maybe then those applicants are likely to appeal to the board of appeals if they believe that the board of appeals is going to get them a more favorable reading than the zoning administrator. i mean, i think that the zoning administrator would still have the ability to consider these on the case by case basis and continue to deny them for the reasons that they can make -- you know, if the findings aren't met, so it doesn't necessarily create a precedence for that. the board thought this was okay. why doesn't the zoning administrator feel that way? why don't we change that? that's my opinion of kind of where -- what the outcome would be, i guess. >> vice president: that's a very good response. thank you very much.

>> director: thank you. is there any public comment on this -- commissioner chang, did you have a question for the zoning administrator? or the planning department? deputy zoning administrator? >> commissioner chang: yeah. just a quick one. is there something that the zoning administrator or staff has recommended to the applicant to avoid the variance all together? it looks like it's existing so it seems like a hard condition to comply with, but i'm just curious if there are, you know, things on the table, low hanging fruit, so to speak? >> i don't think there's any straight forward and i don't know that the department has recommended they remove the bay windows from above, i think our response has just been don't build the adus in this location or they can take some of that area from these adus that they can incorporate into one of the other adus that would be acceptable, i believe.

i don't think we've given any feedback because it is kind of a difficult situation to address. >> commissioner chang: thank you. >> director: thank you. is there any public comment on this item? please raise your hand. okay. i don't see any public comment. so we will move on to rebuttal. ms. calhoun, you have three minutes. >> thank you. i will actually do a little here. i also will clarify this is an existing building. it's an existing concrete structure. would impact every single tenant on the building. here, i'm showing there's a rectangle here in the middle. this is that 9' by 25' section and this is the area that serves this large two bedroom, one bathroom unit with in-unit laundry. these dark areas here you see at the bay windows are the

areas that inting on that literal expression by the 9' by 25' area but you can see the courtyard continues much farther out from that. this higher area is the courtyard. next to it is one large one bedroom one bathroom and that's also in question because the bedroom window faces into the courtyard. here's that 9' by 25' area that's literal enforcement of the exposure code and here in yellow is the line of the bay window above. i honestly would not have brought this before you today if i felt that these were going to be sub standard units in any way. in fact, be quite the opposite. i think these will be some of the best units we've done in the program because of the tall ceilings, the beautiful landscaped ceiling and also the mirror courtyard on the adjacent property which makes this entire area open area over, you know, over 18' wide.

so when i understand that we haven't met the hardship concern in the five criteria, but i do feel we have met the standard of the other four criteria in the variance. we have an existing building. we can't really work around the structure. we simply can't create the 9' by 25' section. bay windows above are considered approvable obstructions in normal projects. but they were not incorporated into the code for the reduced exposure area. these are going to have tall ceilings, very large windows. not just windows, but above to bring in additional light. and we did consider by enlarging the windows that we would draw more light in and, in fact, provide an excess of the glazed area we would need for exposure for these units. i would hang my hat on these.

i think these would be amazing. >> 30 seconds. >> i would hate to see the project effectively shelved at this point. going to large three-bedroom units would be a massive reduction for these clients given the expense of these units. for me, i'm a fighter for housing. i feel strongly this is approval and i don't see it setting a negative precedence. they do meet the intent of the code which is high quality units. >> that's time. thank you. >> thank you. >> director: thank you. we have a question from vice president swig. >> vice president: so we have to do five findings and you're confident about four and you are not confident about the fifth and if you were sitting in my seat, would you please verbalize the five findings in support of the variance. >> sure.

the first is exceptional extraordinary circumstances. we do have physical constraints in dealing with adus and we have a lot of square footage here. and when i look at units, i like to think about the quality of space. this is the one we had the existing bay windows above and as scott mentioned, we can't just tear them off in order to meet this literal 9' dimension. exceptional extraordinary circumstances. this one is probably the gray area i would say. literally enforcing we're going to lose two of the four units. other properties of this scale in the city have been able to build significantly more units, but we're just kind of stuck with whatever the existing footprint of this large building is. it's necessary for preservation and preservation of substantial property rights. income reducing units and the adu program is widespread across the city. we've done them in 100 buildings probably at this

point and our client deserves the same opportunity to build the same number of units and really maximize their opportunity here and to provide housing. that it's not going to be material to detrimental public welfare. i don't believe it would be detrimental to the public welfare. there's plenty of natural light for the california building code. far in excess. so i don't see the reduction of quality or detrimental to the public in any way and that it's in harmony with the general purpose and intent of the code. the intent of the exposure code is to provide housing units and we feel strongly that these units do meet that requirement. >> vice president: thank you. >> yeah. >> director: okay. thank you. of we have a question from president honda. >> president honda: just one quick question, so have you worked with this client before and how many adus have you done for this client? >> yes. i've done a lot of adus for this client.

it's hard to count them down. i would say probably -- >> president: 10, 20, 100. >> president: so your body of work is this client. >> 25% i would say, yeah. >> president: okay. thank you. >> director: okay. thank you. we will now hear from the deputy zoning administrator. >> thank you. scott sanchez planning department. to be brief, i think we have argued fully both in the decision letter and in our previous testimony that the five findings have not been met we didn't have a hearing so if the board should find differently, the zoning administrator consistently reviewing these has found that similar applications are not acceptable and don't comply with -- >> director: mr. sanchez. we can't hear you. >> president: yeah. your connection's not so good.

you're doing the robot on me. >> i always sound like a robot. >> my internet connection is unstable. maybe that's not the only thing. sorry. so i don't know i can turn off my video. does that improve the audio at all. >> director: yes. we can hear you. >> all right. apologies for that. again, really saying not much to add, you know, we rely on the variance decision letter and the review of the five findings. those five findings have not been met. this administrator has been consistent in their review of the similar proposals and others have come before the board. with that, i'm available for questions. thank you. >> director: we have a question from vice president swig. >> vice president: with regards to the five findings and the issue of hardship, i think we kind of get myopic on is this a hardship to the project developer, but can that

hardship issue be extended to the public at large because this does add two units of housing to a underproduced stock and so the hardship here is not necessarily on the developer and that looking at the other five findings in the same way, looking away from the developer and looking really at the public at large with regard to hardship and all the and some of the other elements and the other five findings. is that appropriate to do by taking away these units, it would provide a hardship to the public at large? >> well, finding number one states that there are exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that did not apply generally to other properties or uses in the same class of districts.

so i don't think that the fact that housing would not be provided and acknowledging we're in a housing crisis would be acceptable for finding number one. it's really specific to the property and finding number two as well saying that, you know, because of those exceptional extraordinary circumstances, there's a practical difficulty and necessary hardship not created by or attributed to the applicant or the owner of the property. really, when you get into finding three, it talks about necessary for preservation and enjoyment of the substantial property right and it speaks to how other properties are treated. you know, in this case, we'd say that this is being they're developed adus as anyone could in a similar property. so we didn't find that wasn't met. the finding number four i think is what you're getting at and

it talks about whether the variance, whether granting the variance that will not be materially detrimental to the property improvements in the vicinity. you know, you could argue potentially there that denying an application to housing is not created and finding number five speaks to kind of implications seems to be the general plan, so you can probably make an argument there. i think it's hard for at least three of the findings to take the housing crisis as justification for granting a variance. >> vice president: thank you. >> yeah. >> director: thank you. commissioners. this matter is submitted. >> president: would anyone like to start first? >> commissioner: i guess i will. so looking at the plan and going through the brief, i mean, they do look like amazing

units and just from the pictures that were provided in the brief, this building is -- whoever the landlord is does take very good care of their buildings. unfortunately, when you come before our body, the decision has been made by the department and it would require four of us to be able to change that and there would have to be extenuating circumstances and those are the five findings that are presented for us. unfortunately, i'd love to see these units, they look amazing, but i can't -- i can't say that i would support overturning the department on their decision. i see that commissioner chang had her hand up. our planner. what would the planner say? >> commissioner chang: i was thinking that it'd be best for deputy zoning administrator sanchez to articulate how the

requirements have been reduced multiple times. could you just speak for the public, can you just explain that to everyone? >> certainly. so the exposure requirements go back several decades. i think they were added in the 1960s and i'm sorry i'm keeping my video off to preserve band width. in this case the code where we are would be 39' wide by 34' wide or a public street or right of way that's at least 20' in width which is what they would have presented in front of the property. there's another way we call this inverted courtyard that increases dependent on the height of the building. when the adu provisions were added in order to incentivize the creation of the housing, a waiver process was put into place for certain code requirements and exposure was

one of them. however, it was found that we didn't want to completely exempt projects from exposure. and so a minimum of 15' by 15' open area was required for the original adus. in 2018, kind of accounting to there were some concerns and we had variances coming in for those cases. there was, you know, concerns that that was perhaps too large. we wanted to make it a little bit smaller area to facilitate new adus and so it was reduced again to the 9' clear dimension 225 square feet and open to sky with limited exceptions and so it has been a process. had the intent been to reduce it further to such that this project could move forward without a variance, then the board of supervisors could have further reduced the requirements or, you know, not set any minimum standards, but this is where we are and the

zoning administration takes these reductions very seriously. >> commissioner chang: can you please share what those limited exceptions are? >> so there's fire escapes, and we have in these areas where fire escapes are going to be kind of common features. the chimneys. there are certain other ones that are outlined in planning code section c1416. so they are limited. it does not include bay windows which is the case here that and the bay windows, you know, i agree that, you know, it's a small amount that they encroach, but they do encroach that the strict requirements are not met. >> commissioner chang: thank you. that's really helpful. >> thanks. >> president: commissioner chang, could you have recited that? i think you could have probably. thank you. >> director: okay.

i believe i said the matter's submitted, commissioners? >> president: okay. would anyone else like to chime in or make a motion? >> commissioner chang: i'd like to chime in. i think my sentiment aligns with yours, president honda, in the sense it's a shame that these really well designed, thoughtfully created units may not be able to be created. i think after hearing that explanation from mr. sanchez, i think it is very understandable, the resistance to providing variances because of the legislation and the following legislations have created. i don't disagree with you. i think they are quality units that, you know, especially with the adjacent lightwell that there could be light in there

but there was thoughtful consideration to the legislation and it and there has to kind of be like a line in the sand and for that reason, i think i would be supportive of denying the appeal as well. >> president: would you like to make that motion, commissioner chang? >> commissioner chang: sure. i may lean on our executive director, but i would move to deny the appeal on the basis that the five findings were not met. >> director: okay. so we have a motion from commissioner chang to deny the appeal and uphold the denial of a variant from the basis of the five findings required under planning code section 305c have not been met. on that motion, [roll call] >> is there a way to share some thoughts before the motion?

>> president: go ahead. >> yeah. i'm just wondering, maybe it's just me. is anybody else compelled by the fact there is that adjacent space? >> president: i think that's your answer. >> commissioner chang: just to respond to that, commissioner lopez, and sharing thoughts and experiences and insights from being a former san francisco planner or planner for the city of san francisco, i think, generally, it's very tempting to be able to consider the adjacent lightwell. i think the thinking is that there's nothing to stop the adjacent landowner, the adjacent property owner, in this case it's the same property owner, but there's nothing to stop them from doing the same thing, so while you have at this moment, 17' or

close to 18', whatever that may be, by that logic, it's entirely possible for that to decrease, right. so we don't know, we don't have control and we can't bank on what exists today on another property purely because it's not part of that property. >> commissioner: yeah. that totally makes sense. i guess my question would be in instances such as this where the adjacent property owner's the same as the petitioner, you know, i'm wondering if we'd be able to put a restriction or a condition on the denial that, you know, they agreed to that type of continued obligation on the property, on the joined properties. >> president: so potentially, you can put an n.s.r. and look

if it runs with the title. especially of restrictions, but, again, we have a criteria of five and for us to overturn the department, it would require four commissioners to agree on that. and so, going further, potentially, i think but i don't think we have four commissioners that are willing to overturn the department on this particular case. >> director: additionally, i just want to add the adjacent property isn't the subject of this appeal. so we couldn't. we could not impose a restriction. >> president: the only thing is we can get since the same property owner to agree to it and continue it. again, even with that space, it doesn't meet the five criteria. does that answer your question? sorry. >> commissioner: yeah. i guess i would ask ms. calhoun

i would pose the question to you if going down that path would be acceptable to your side, the n.s.r. path to have that run with the title? >> i can say unequivocally, "yes" and the adjacent building is also residential and it's kind of a mirror building of our building. all those windows are for the units, any reduction which that wall was concrete were to be demolished and moved to reduce the width of the courtyard, they would lose residential buildings on every level of their building. so the likelihood of that expansion in the future is extremely basically nonexistent. so i know that our client would be absolutely happy to agree not to expand that building in

perpetuity. >> commissioner: and, just one fop-up. just so i'm clear, absent this variance, these units won't be made or is there a way to revisit the plans to address the subject of the denial? >> it's unclear to be honest. you know, these projects although straight forward can be very expensive to build. so at the end of the day, they would end up with three units instead of four. they would end up with that small bedroom in the front 371 square feet and these two very large three-bedroom units in the back which are kind of a challenging rental situation in general for multi-family. they're also just not affordable as it relates to the goal of the adu program. a three-bedroom unit is probably $5,000 or $6,000 a month. maybe a little bit less than that. so that's the tricky challenge.

i'm not sure if my client would want to proceed if there are only two, three bedrooms and then the one bedroom in the front. >> commissioner: thanks. >> director: okay. so we did have a motion on the table from commissioner chang to deny the appeal. on that motion, [roll call] >> director: so that motion carries 4-1 and the appeal is denied. we are now moving on to item number six. this is appeal number 21-059. caterina fake versus the bureau of public works. 635 steiner street appealing the issuance on june 17th, 2021, to caterina fake of a public works order.

with replacement adjacent to 635 steiner street since the trees are healthy and we'll hear from the appellant first. i believe mr. jim ho is here to represent the appellant. >> yes. can you hear me. >> director: yes. go ahead. >> hi. i'm the attorney for the appellant. if you don't mind, i'm going to share my screen right now so i can walk through some of these photos as i think it might be helpful to explain the trees. so this appeal concerns the three trees on her property. as can you see here, this is 635 steiner. number one is a mexican fan palm. tree number two is a cabbage palm right here and tree number

three is a spanish bayonet. and just to kind of give you more context, this is tree number one, the fan palm. tree number two, the cabbage palm and another photoof the cabbage palm here and then the third photo is the spanish bayonet. and you'll notice the spanish bayonet does not have one trunk. actually, it's a series of five different trunks with kind of a series of stems going up. and so, probably in the interest of time, i'll focus mainly on the mexican fan palm and so we're asking for removal of this tree due to damage to my client's property. as you can see in this photo, the tree was planted on top of this 10' high retaining wall and it's on the border of my client's property which is here in the yellow and the neighboring property which is here in the blue.

and i like to just kind of show you this because it gives you an overall sense of how high this retaining wall is. this is a prior picture from when my clients had their water main line repaired. as you can see, to get to that repair, the plumber has to use stairs and so, you know, the issue with the retaining wall and the overall height exacerbates the issue and makes this more of a unique circumstance and so this is a close-upshot of the fan palm. the issue here and this is the same thing that was noted by the arborist is that the trunk will flare out and you can kind of see this triangular shape here. the roots are spilling over onto the neighbor's property here. you can see that it's been

sured up with this kind of common lumber and the arborist noted that this could pose a risk of farther expansion and eventual damage and toppling of the wall. this next photo is a top down view of the base of the trunk and this concrete wall here as you can see separates the neighbor's property from our property. you see that the root expanding over it and this is the remnant water main pipe which is actually under the root system. and this is kind of the last top down view. here's the sidewalk. the roots are overgrown. some of that has been mitigated due to maintenance by my client, but the root still spills over the wall. and so, again, we're asking for

removal on the basis of property damage. so in the past, the water main which you can see here, this is an older photo. the water main actually broke due to root intrusion. you can see significant root growth here. over on the left here, you can see the roots kind of bulging and inner meshed with the paint and the concrete wall. this is another close-upshot from when the plumber had initiated the repairs. and, this is post repair. we've cleaned up the root systems a bit, but over here, you can sort of see, sort of the extent of the root growth over the wall. so not only has the tree damaged the pipes, the water main, you can see here

expensive cracking to this retaining wall and so this is the entrance to the property. you can see fairly significant long crack there that's been there for quite some time, but we do think that the tree is contributing to the load on the wall. here's another photo of the cracking and this is directly below the tree. and then more photos here of cracking. and so, i know time is limited, but i just want to touch base quickly on the other two trees. this is the cabbage palm which is directly behind the fan palm. they're in close proximity to each other. you can see in this photo, there's not much separation between these two photos i

think in the recommended tree list. it says that these cabbage palms require a large basin and, you know, this area is not a large basin especially in conjunction with the fan palm and the fact that it's an above grade garden bed. over here, you can see the system of the spanish bayonet. again, not a very large basin here in this photo from the sidewalk, you can see the bayonet kind of overhanging over to the neighbor's property. and so, you know, the arborist had noted that both the spanish bayonet and the cabbage palm are overgrown and overmature for the site so we're requesting removal of all three trees. and so, with that, i think i'll take any questions from any of the commissioners.

>> director: okay. thank you. i do not see any questions at this time. so we will hear from the bureau of urban forestry. >> hello. how are you doing tonight? >> director: welcome. >> all right. let me just share my screen. can you see my screen now? >> director: yeah. >> okay. yes, this case went to a local hearing. and at the hearing, automotive three trees were denied. these trees are all significant trees on private property. just to reference, a significant tree is any tree tree on private property that is within 10' of the public right of way, is under 20' tall, has a canopy of 15' wide

or 12" of diameter. it only has to be one of those three characteristics to be protected as a significant tree. first, i'm going to focus on the mexican fan palm. upon reviewing the appellant's brief, you know, it became more apparent to the damage that the palm was likely causing to the wall. it may not be the primary factor, but it's definitely not helping the structural integrity of the wall. it's clearly planted in a confined space and it can be adding to the cracking in the wall. and, this is part of the when we originally denied the tree removal permit and they

appealed to the hearing. some of the things they had mentioned was, i guess, damaged to the pipe, damaged to the retaining wall that has clearly been cracked and repaired a few times and what kind of stuck with me and as i was reading this appeal was when it rains in the wall cracks, it gets larger because of a drainage issue and that they were in order to properly fix that drainage issue, that palm tree would have to be removed. if they really wanted to get to the root cause because of the wall issues, that's why in my appeal for my brief, i kind of reversed course and said, buff would be okay of the removal of the fan palm only if they did pursue an actual repair of the wall to get to the root issue which could be a drainage

issue. as for the other trees, they were denied because we didn't find any overwhelming reasons to approve them for removal. the cabbage palm on, yes, it's slightly declining condition, but it's still healthy enough and it's far enough away from the wall that if they do some major wall repairs, it could survive construction and there was no, you know, the life safety issues, and the tree can remain in this condition for many more years. and, then as for tree number three, again, no major defects. the tree is healthy. the wall adjacent to this particular tree is in good condition and it doesn't -- this section of the wall does not appear to be need to be

repaired. again, just showing more photos of the tree no health issues and this is -- i thought this was a good photo. it's an older photo from google street view, but it shows how this tree is growing and the bureau of urban forestry would be okay with the owner selectively removing some of these stems to relieve some pressure off the wall whereas we can retain some of the canopy, but also free up the space for future plannings on. and maybe prevent future wall damage by removing a few of those select stems. this photo was just showing how the wall near the spanish bayonet doesn't appear to be failing. again, just kind of in closing, the bureau of urban forestry

would agree that the mexican fan palms should be removed, but only if the project would fix the root cause of the wall's failure. withdon't think they could properly fix the wall without removing that tree. that would be tree number one, the mexican fan palm on the right side of the photo, but we think the other two trees are in good enough condition to remain and don't be and are not causing damage to the property. thank you. >> director: thank you. we have a question from president honda. >> president honda: yeah. so i have two questions. this was continental divide an extensive brief, not on your side, but on the permit holder one that the crack in the wall is pretty substantial and that is on a public right of way. that's a health and safety

issue. how supportive or nonsupportive is the department in -- let me back it up one question. are these trees native to san francisco? i know the palm probably is not native to san francisco? >> no. i don't believe any of them are. >> president honda: so how supportive would the department be is one they had to prepare the wall to remove the tree as well as they removed all three trees allow planting of, you know, three or four other trees at a 36 box or minimum 24 box? >> yeah. i mean, i don't know how -- ideally we would like to see the tree two and three remain. we think they're healthy and they look fine at the site. i mean, it's not -- neither of the trees provide substantial

canopy. >> president honda: yes. >> i mean, they're not by no means are they amazing trees. we primarily denied them because they're healthy and we didn't see any over womening reasons to approve them for removal. >> president honda: and then, did the permit holder ever talk about replacement with you at all? i didn't see it in your brief. >> yeah. it wasn't in my brief. they do have intentions to replace at least three trees there. it's a little difficult given that -- well the utilities are spaced in a way there's room to replant trees. there is an intention to replant. >> president honda: since it's gone up. sometimes we allow it to be replaced and we find out if there's electrical and water. >> luckily, at this particular property, you can see where all the utilities enter the wall. you can see where the sewer

line is and you can see where the gas lines are. so i think there's room. >> there's been kind of a change of what you would or would not allow and i'm just sort of curious what is it that caused you to change but i'm

just a little curious as to what happens in the intervening time, the department changes its position? >> yeah. i guess it's in my opinion i guess in the way i like to operate it's always being stubborn isn't always the best way forward. just because you state something beforehand doesn't necessarily mean you have to hold that line extremely hard. in this particular case, i thought it was fair that if the property owner was really going to pursue. the reason they applied for approval was to prepare the wall and make sure the wall doesn't get damaged anymore and, you know, in reviewing the

-- in reviewing the documents more the documents became obvious that you really can't fixeded wall or get to the root cause of the wall being fixed unless you remove that palm tree and we don't want to let them remove the palm tree unless they agreed to actually fix the wall. it's kind of like -- you know, we don't want to lose the palm tree if they're going to let the wall fall apart. if they're going to commit to actually repairing the wall, we wanted to leave that opportunity for them. >> commissioner: yeah. and i don't mean to apply that i don't appreciate it the conclusion, but i was curious sort of how that happens because it's been a little bit more of a pattern recently than it was before. again, i appreciate that is not necessarily going to help in

this situation. >> yeah. one thing i'd also like to add, the bureau of forestries has been in a lot of duress over the past two years. we had a few members of the public who would protest 90% of the trees we were proposing for removal and really pushing us hard into tree removal hearings and i think that definitely -- >> president: we know all those names by heart. >> yeah. so it definitely caused our small group of permit inspectors to review tree removal permits in a different way and to some degree, we're starting to direct course to some degree and realizing maybe we were denying too many trees as in the past and kind of like, the public coming to the board of appeals and appealing our removals, now the office happening were more private

property owners. as a course correction. >> fair enough. thank you. >> president: new sheriff in town. by the way i do like this approach. >> director: okay. vice president swig. >> vice president: yes. of thank you for that transparency on your answer. with regards to the removal, you seem inclined, more than seem inclined to allow tree number one to be removed. would you like to be put a recommendation there and to mandate a replacement tree or are you going to leave it, suggest it, leave it to the property owner? >> all i would say is it would be a 24" box and then, you know, probably, i mean, the

small stature replacement. something from our small that's all i would say in that matter. >> director: okay. thank you. is there anyone here to provide public comment on this matter? please raise your hand. i do not see any hands raised so we'll move on to rebuttal. we're hear from mr. ho. >> yes. i think the one point of contention and i do appreciate buff's receptiveness to removing the tree now on second look. i think that one of the things we're hoping for is unqualified approval of the tree without requiring a building permit to repair the wall given there

could be time restraints of getting that permit. so imism r mrifrt that the tree is causing damage and making the wall unsafe, we feel we should be granted the right to remove it without any contingencies not the fact that the owner would like repairs. just touching on one issue with spanish bayonet. i didn't think they were worth pointing out in the presentation, but the photos are in the exhibits and show hairline cracks in the wall. even though we would like to remove it all, you know, there is damage to that portion of the wall too. so that concludes my rebuttal.

>> director: okay. we have a question from commissioner lazarus. >> commissioner lazarus: i think actually president honda had his hand up first. >> director: okay. thank you. president honda. sorry. >> president honda: thank you. i can't believe you forgot something on your brief. this is probably one of the longest briefs i've seen on a tree, but the question here is even in your brief, you said that the tree is causing issues and that -- those large crack where the big palm is concerning, especially on the public right of way. i personally don't see if this board is allowing you to remove this tree without the condition of that wall being repaired. second question is if we allow you to remove all trees, what is your plan of replacement? >> right. just answering that second question first, the application to remove actually identified

three replacement trees. so i think there were a number of fie casss and i'm blanking on that third tree. but the plan was to replace the trees likely with native species and we would take the recommendation for small stature replacements. and, i'm sorry, i missed the first question. >> president: the first question is is that even in your brief, you state that the tree has caused substantial damage to the retaining wall and there's quite a bit of dirt behind there and there's quite a wit of water back there. the crack is substantial and it's addressing the right of i don't know how much background, this board does not allow tree removal. there has to be extenuating circumstances that do allow that. if we were to allow that large stature tree to be removed, we

probably would make a tsubject to that wall being repaired and so if that's the case f-you're not going to do the repairs, do we not want the tree removed? >> i guess, my concern about the condition is that, you know, the owner has gotten quotes to remove -- to repair the wall in the past and, you know, that amount is stated in the brief, in the hundreds of thousands of dollars and so if the owner doesn't proceed immediately with it, my concern is that the tree will cause further damage whereas if we were granted unconditional removal now, we could remove the tree and repair the wall in due course. i don't know. >> president honda: i didn't see in the brief that there was an estimate for the wall repair. and you're saying that that wall repair is several hundred

thousand dollars? >> yeah. that was um, i'm blanking on the page right now. >> president honda: i'm going through it right now. >> it was on page 8, about middle of the page. >> president honda: okay. but again, and then regarding you're asking to remove large stature trees and replace them with three small trees, three or four trees? >> yeah. the owner would consider four trees. yeah. >> president honda: thank you, counselor. sorry for taking so long. >> no that's all right. my thinking was that potential danger but that you but i think

if we go that route, could that give some time for the wall to be repaired. it doesn't have to be done when the tree is taken out, but within a reasonable amount of time. i just want to suggest that to mr. ho as we go forward. >> president honda: i agree. how long do you think would be reasonable, commissioner? six months. >> commissioner: i don't know. we're not in deliberations yet. so we'll come back to that. >> president honda: commissioner lopez. >> commissioner: thank you, mr. ho. the language reads that the replacing of the retaining wall along with other improvements would be estimated at 250. do you have a sense with what

portion of that 250 would be the quote unquote all the other improvements. >> i don't have an analysis of the cost, there would be improvements to the entrance and obviously to the wall. i don't know how much specifically is allocated to the retaining wall. yeah. i'm sorry. i just don't know. >> director: thank you. we will now hear from the bureau of urban forestry i would just say the reason the bureau kind of conceded on this one again was to if the palm tree was removed, it would be

some some type of condition of the wall being prepared if the palm is granted removal because otherwise, again, it's not a guarantee that the palm is the primary causing factor in the wall damage. it could be other things. it worsened during rains. so there's no underlining drainage issue as well which could be. it's the drainage issue and the palm tree and we can't fix the drainage issue without removing the palm tree. so it's not a full repair of the wall, then it's at least a removal of the drainage issue that could help further wall damage. again, some type of condition ensures that the palm is not

lost. >> president honda: do you have a time line that the department would -- i mean, the beautiful thing when that building was constructed, we now have stuff that alleviates pressure and helps everything else going forward. does the department have a guideline of what they would like to see three months, six months, a year? >> i think a year affair. >> president honda: okay. >> you know, that's. >> president honda: i think that's more than fair to be honest. thank you. >> director: okay. commissioners, this matter is submitted. >> president honda: would anyone like to start? >> i mean, i would be prepared to go the route that the bureau is suggesting. i don't know if i've reached a decision about what to do about the other trees and requiring replacements, but it seems to me allowing that one tree to come out with the requirement that the wall be prepared is

not unreasonable. >> president honda: okay. i would say -- go ahead, vice president. >> vice president: go ahead. >> president honda: okay. i think those trees are not indigenous to the city. i think that the wall needs to be repaireded. i think there's some substantial trees there that the representative for the permit holder has already agreed to force small stature trees and allowed him to work with the department on the type of trees, but i don't have a problem with them removing all trees and then to have them installed in the wall repaired within one year i think is really reasonable. vice president. >> vice president: i rather go i'm not horribly opposed to your position. i'd like to follow the recommendation of the department and allow the big tree to reroot and contingent

on the wall being repaired one year is fine one year's fine and, but my issue around that and also with some requirement to replace it with a 24" box out of the small stature tree play book, my one concern is this and it just comes from paranoia for being on this commission for the amount of time. and any time the wall doesn't get repaired, what's the accountability? you know. >> president honda: i was kind of wondering that as well. if we set a condition on this permit, what is the enforcement? >> vice president: yeah. how do you enforce it.

we say go ahead take the tree out and you've got to replace the wall within twelve months. tree comes out next week. three years later and the wall's not prepared. what's the accountability? what's the enforcement? [please stand by]

>> commissioner swig: or do you repair the wall first and then pull the tree? i don't have a solution. i only pose the problem. >> president honda: okay. so although we don't have joe here, our planning deputy zoning administrator scott have any idea? >> scott sanchez, planning department. sorry. no, i don't, but i can discuss

it with steve if it would be helpful after the hearing. >> president honda: all right. i think we can condition the removal. by having newer, you know, small stature trees, they'll have a little bit more canopy, it will sequester more carbon in the future. so i will make a motion to -- to accept the appeal and mobil

[inaudible]. >> clerk: okay. i see deputy city attorney jon givner is raising his hand. >> president honda: help me. >> mr. givner: excuse me, president honda. the ordinance itself includes a penalty section that includes administrative financial penalties for removing a tree in violation of the ordinance, so if the city authorizes conditions, and the conditions isn't met, that is potentially a violation of the ordinance which is enforcement through the penalty. >> president honda: which is up to $250 a day. thank you for that. i knew there was something in there that would be a

catch-all. i appreciate that, mr. givner. >> clerk: okay. thank you. back to the motion, i just want to clarify that you want to grant the appeal, issue the order on the issue that it be removed, the removal of the mexican fan palm only after a building permit is issued or applied for? >> president honda: let's say all three trees can be removed -- >> clerk: i'm just separating out the mexican palm because that's the one that is impacting the retaining wall and that's the one you want a building permit -- or do you want to add the other two? >> president honda: i think i want to add the other two so it's easier. that's fine with me. >> clerk: okay. so what did you decide? issuance of the d.b.i. permit? >> president honda: issuance of the d.b.i. permit. >> commissioner swig: excuse me. what's their recommendation, department, please?

>> yeah. the preference is issuance of a d.b.i. permit. that's the most hold-fast. >> commissioner swig: that's what i would suggest to you, sir. >> clerk: okay. and did you want to add replacement trees? >> president honda: yes. upon removal of the trees, that the owner will replace it with four small stature trees, to be determined in conjunction with the permit holder. >> clerk: okay. i just want to confirm with the city attorney, too, i believe we can only to 1:1 replacement? >> president honda: he's, like, trees? wait. >> mr. givner: i'm not certain of the rule, but i can look it up as we speak. >> clerk: under the code.

>> okay. i think under the code, that's what is required. >> president honda: okay. project sponsor has -- >> yeah. we often made agreements with property owners to replace trees. >> president honda: having small stature trees would be appropriate, and i think having that retaining wall would be absolutely amazing. >> clerk: okay. so do you want the species to be determined by b.o.s.? >> president honda: i trust the department, and i like the way steve keller is taking the helm, to be honest. >> clerk: okay. and 24-inch box size trees? >> president honda: yeah, 24-inch box size. >> clerk: and on what basis is this made? >> president honda: on the basis that the retaining wall is a public safety hazard. >> clerk: okay. so i'm assuming it's okay to go

ahead with the replacement for four trees. >> president honda: correct. >> clerk: okay. so we have a motion from president honda to grant the appeal and issue the order on the condition that it be revised to allow for the removal of the three trees and the mexican fan palm can only be removed after a building permit is issued by d.b.i. for the repair of the retaining wall, is that correct, president honda or -- >> president honda: until all of -- >> clerk: okay. the trees cannot be removed until a permit is issued by d.b.i. for the retaining wall. >> president honda: i'm sorry. deputy city attorney, does that comply with the requirement that the removal is conditioned? >> mr. givner: yeah.

i think it's matching up -- is that what you're asking? does the motion match up with what you've stated is your intent, commissioner? >> president honda: yeah. okay. thank you. >> clerk: okay. and replacement with four trees in 24-inch boxes, small stature, species to be determined by b.o.s. in consultation with the property owner on the basis that the damage to the retaining wall creates a safety hazard for the public. on that motion -- [roll call] >> clerk: so that motion carries, 5-0, and we are now moving onto the last item, and thank you very much for your patience. this is item number 7, appeal

number 21-066, laura kemp versus san francisco public works, bureau of street use and mapping, 231 dwight street, appealing the issuance on july 6, 2021, to g.t.e. mobilnet of california, l.p., of a wireless box permit, installation of a personal wireless service facility in a zoning protected location. this is permit 21-wr-00051. mrs. kemp, you may begin. >> president honda: before you begin, i want to say, it's been a bit of a wait, and i want to thank you for your patience. >> thank you, president honda. it's been a bit of a long wait -- >> clerk: miss kemp, you might want to adjust your camera because we only see half of your face.

>> that was the point. i will get into the camera. may i restart my time, please? >> clerk: yes. >> operator: i will restart the time. >> good evening, president honda, vice president, and commissioners. adding equipment to these poles maintains the character of the neighborhood. i want to note, over many years, neighbors have worked to improve the quality of life, the character of the portola district. these efforts have included the creation and maintenance of neighborhood gardens, green spaces, the planting of street trees and sidewalk gardens, pocket parks, and the undergrounding of utilities along the business corner of san bruno avenue. in 2016, the san francisco board of supervisors recognized these efforts by designating the portola the garden district

of san francisco. note the applicable standard is proposed if it is a personal distribute which would significantly detract from the attributes which was a special designation of the district. one could argue that this effort runs opposite to the portola as there are no plans to add a street tree in keeping with the plans of greening the portola community. please note, the portola community is in district 9, not as incorrectly documented as the excelsior district. our district supervisor is hillary ronen. article 25 on page 24 of exhibit h, under section 1514, notice of final determination, types of noticed required,

states that for the members of the board of supervisors who represent the district in which the approved personal wireless service facility would be located, since hillary ronen was not notified, the final determination notice did not meet the required notification. the proposed wireless facility at 231 dwight utilizes a six-foot crossbar that is 10 foot in length, and close to 2 feet in height and integrated radios attached at either end of the crossbar. and i think, alex, if you'd pull up the photograph, the map is following the proposed photograph of the wireless antennas, and those integrated

antennas are going to be attached to either end of the crossbar. included in the design is a small meter and a 5-g location box. these proposed additions will be moved to the top of the pole. in 2009, decision by the united states court of appeals for the ninth circuit in a case involving the ability for communities to review the assignment of wireless facilities in the public right-of-way, the court determined that communities have a right, under california law, when considering to install a wireless facility in a public right-of-way. the residents of the affected

neighborhood were not notified regarding the design, aesthetics, or need of the facility. the only thing we received was receipt of a notice of final determination, and that was sent out the first week of july 2021. in fact neighbors have had to address or reflect this notification. neighbors were not invited to participate in the design reapproval district. 60% of its residents are asian, 12% are white, and 1% are

indigenous. on a public pole [inaudible] i would like to add, the portola neighborhood adds excellent to good views for the neighborhood on the hill, such as the residents at 231 dwight. the city does not regulate the technologies while the carrier is used, and while the carriers have expressed working collaboratively with the city and neighborhoods to integrate the facilities in a less intrusive manner. at no time has the carrier, verizon, reached out to the community or desired to work

with the community to integrate facilities in a less intrusive manner. i guess on that one, we can look at the photographs 7 and 8 would be helpful with that. thanks, alec. in addition, please see page 4, exhibit a, the san francisco planning department letter signed by [inaudible] oh, quickly, the proposed wireless equipment is to be placed in front of the neighbor's windows at 231 dwight. please see attached photos. and on that, the permit should

either be denied or resubmitted to the planning department for further comment. these are photos in the background of the antennas, the smart meter, and the fiber relocation box. >> operator: that's time. thank you. >> clerk: okay. thank you. so we will now hear from the permit holder. we have an attorney for the permit holder. mr. albrighton. >> hi. so -- hi -- or -- [inaudible]. >> clerk: welcome. >> i'm trying to unmute myself, and thank you for your patience, including mrs. kemp, for staying so late and having this discussion. with me, i am outside temple for verizon wireless. i have modus, here to answer any questions,

and bill albrighton. the pole itself is a pg&e pole. it is 39 feet, and there will not be a height extension. miss kemp is right. a new crossbar will be added, and that's where the radios will go. these are integrated radios, so there will not be additional equipment other than the fiber demarkation box and the smart switch that goes on the box itself. they're all integrated into the antennas. the design has actually been approved by the city of san francisco. d.p.w. issued order number 204901 a few months ago after

holding five or six hearings on the 4-g and 5-g proceedings. if i could ask modus to share a picture of the photo sim, i'd appreciate that. this is verizon's smallest design we have. this is the least amount of equipment, the least amount of volume, and i actually think this visual aid that mrs. kemp has behind her helps illustrate the -- >> clerk: can we pause the time for a moment because we don't see the visual. >> operator: yeah, time is

paused. [inaudible] >> it's okay if they can't. it's in your packets, as well. i apologize. >> clerk: we're find holding you if you would like. >> okay. >> president honda: honestly, i think mrs. kemp put an amazing oral presentation and package, but this is her first, even though it's our 300 hearing on this, so that way, everyone has an understanding. i think that would be good. >> clerk: okay. we can see the screen now. >> okay. thank you, and i appreciate the pause. [inaudible] >> so what you see on the left is the pole as it stands now. so you can see there's an existing crossbar above the light, and that's where all of the lateral lines feed into the pole in order to give the neighborhood power. what verizon has proposed here, which you'll see on the right,

is keeping the same pole, not extending the pole, and moving the crossbar to the top of the pole and then adding a crossbar that runs parallel with the street that has integrated radios and antennas on the crossbar. there are boxes that you can't even see here, and both of those are on the pole. again, this complies with the new d.p.w. order that was under consideration for i think nearly two years. that lays out objective standards for 4-g and 5-g facilities going on wooden and steel pg&e poles in the public

right-of-way. with respect to r.f., this has a maximum power of 163 watts. it's only 3% of the f.c.c.s exposure limits. it's only 1.5% on the ground, and one of the issues that miss kemp had raised in her initial filing was whether or not verizon would be willing to provide installation testing, and of course, they're happy to do that. with respect to notice, there are actually three different forms of notice here. traditional mailing, posting, and e-mailing. all three [inaudible] it would be great if you could pull that up. the notices are also translated

into a number of languages. if modus wouldn't mind piping in and telling me how many languages, that would be great. okay. i don't see the number of languages, but the notices went out pursuant to article 25, and they went to both tenant district 11, and they were translated to english, spanish, chinese, and i think that's all i have right now. paul, did you have anything that you wanted to add right here? >> we can take our time on rebuttal, but i'll just add -- hello, president honda, and

members of the board. good to see you again, and all in good health. this is the sleekest design that verizon has. they're sticking out 2 feet. it has to be 2 feet. pg&e line men have to be able to climb behind the poles. that's why they're out there like that. raising them up replaces it with this sleek antenna that runs parallel to the street, and there's definitely a need for the service now. the ctia has just reported, in the last four years, demand for wireless data has doubled. that would be like increasing

the population of san francisco from 800,000 to 1.6 million. it provides all those necessary services. all three departments recommend approval, and we hope that you can follow their recommendations and approve this important facility. thank you. >> president honda: counselor. we haven't seen you in a while. i can't say we missed you, but you look good. >> thank you. we're trying not to visit too much. >> clerk: thank you. we will now hear from the bureau of street use and mapping. i believe mr. gregory slocum is here. [inaudible]. >> clerk: hello, mr. palacio, and welcome. >> all right. i'm assuming that you can hear me. >> clerk: yes. yes, we can. >> hello, president honda and commissioners. i am leo palacio, representing

public works. we believe this [inaudible] article 25 requires public works to refer wireless applications to the department of public health and the planning department. both departments determined that the application complies with article 25. the planning department is in attendance and can speak more to planneding review process if the board has questions -- to planning review process if the board has questions and can respond to e-mail. >> president honda: thank you. and good seeing you, leo. >> clerk: okay. and i just noticed that the deputy zoning administrator was here. >> president honda: could you chime in at least regarding the view? >> thank you. scott sanchez, planning department. the pole is located in an rh-1

zoning location. it's not a planning protected location, which the board often sees, which is streets that have good and excellent views and also if it's a historic resource. the department found that it would not detract from the

historic or neighborhood characteristics. this does appear to have properly been reviewed and approved by our department with one minor typo that i would note. on page 1, it states at&t, but it's verizon, and that doesn't impact our review of the project. thank you. >> clerk: okay. thank you. we are now moving onto public comment for this item. if you would like to provide public comment, please raise your hand. you can do that on your computer or if you called in, press star, nine. okay. i do not see any public comment, so we will move onto rebuttal. miss kemp, you have three

minutes. miss kemp, are you there? >> yes, i got muted, i guess. somebody muted me. i'm back. thank you. >> clerk: okay. >> i would like to just take a moment, if i may -- alec, can you give me a moment because i actually need to read the comment from my neighbor who lived at 231, and i would like the board to note -- >> operator: am i stopping time -- >> president honda: why don't you give her a minute? she was patient enough to wait the whole evening. >> clerk: she wants to read a comment from the neighbor. the neighbor was here earlier but left. >> president honda: yeah, why don't we allow that. >> thank you, president honda. this is a neighborhood that is directly affected.

this is at 231 dwight. this is from my neighborhood. hi, everyone. thank you for this opportunity to comment. my name is ernan, and i live at 231 dwight with my two daughters. i work at a small start-up in san francisco, i pay taxes, and i vote in every election. both of my daughters were born in this house. i've lived in this house since 2004, and it's impossible to be happy with a process that will install two cellular antennas in a place where they live. still, i've tried to familiarize myself with the antenna and its documentation,

responses to this appeal from verizon's lawyers and the planning department. there's a lot to digest here. it's [inaudible] it's challenging to do this while juggling a demanding job, being a full time single parent and in the middle of a covid pandemic, and my kids going back to school for the first time since 2019. a better process would have been to notify me and my neighbors in april when [inaudible] were already writing up their findings. this would have given me time to educate myself on the process. instead, i'm immediately put on the defensive and in conflict with verizon and city planners. anybody would react this way. this process is broken, so i ask you, everyone on this call, should you find yourself to vote on this process to fix it,

please imagine what the process is like from the view of the prospective residents. i understand that the departments have approved verizon's application, but i disagree with their findings. in one place, the word, insert zoning district appears instead of the actual zoning district. these basic errors bring into question the actual process of the system. why should anyone have faith that the approval it grants is the result of any lazy or effort? as much as these approval documents attempt to dot every

i or cross every t, no one stood in my backyard to see how my life would be impacted. it would be severely impacted. they confidently proclaim that the installation would not significantly detract from the character of its surrounding. that is not true. it will significantly uglify the views from my front windows and to downtown. corporate and civic mission statements about beautifying neighbors and building communities don't survive contact with the process that we have here. i disagree strongly with the planning department's findings, and with claims by the planning and verizon that the project

will not detract from the [inaudible] and actually come visit the neighborhood to understand the uglification that they have approved. thank you. >> clerk: okay. now, you will have three minutes for your rebuttal statement. >> thank you very much. i need to take a deep breath, if you don't mind. that was a lot. so i just would like to say at no time did verizon reach out to our district supervisor, hillary ronen, and on the document, it states excelsior, 11. we are not in the excelsior. we are the portola district, and we are very proud portolans. we are district 9, and i would like that notified because these documents did not go out to our district supervisor. the other thing is, too, the photographs, as i mentioned

earlier, these are photographs taken by my neighbor of the view from his window. it's actually -- the hill, dwight. at that point, i think it's actually on a 45° slope, so actually what appears to be from the photographs that verizon have posted, it appears to be more flat, but actually, i walk that hill every day to the bus stop, the number nine and the number eight go down san bruno avenue at dwight and paul, and i actually walk down there every day, and so i am very familiar with that hill, and i'm very familiar with the uphill. and so i just would like to note that when one is on an elevation, things actually appear lower than they do higher, so -- and it would be noted that these antennas -- yes, they are, 20, 21, almost

22 inches tall. this is quite a visual blight, i feel, on the crossbar, and they're going to be painted brown. and so brown is not the color of the sky. if they were supposed to be integrated into the actual view, they would not be painted brown. i feel that these are actually creating more of an obstruction, a visual obstruction, and visual clutter, and i feel like this goes in a -- totally against what we are trying to do. i'm a neighborhood activist. actually, i've been very active in planting street trees, planting a neighborhood garden, and it distracted from what we're trying to do to improve the quality of life in our neighborhood. these hours that i put in are volunteer hours. i'm not paid to do this.

i'm not paid to put in street trees. >> operator: 30 seconds. >> for me, it feels like energy wasted because a corporation can come in and determine what they value and also the city, too. we have views, we have value. we may be a working class neighborhood, but we have value just like any other neighborhoods in the city, and we would like recognition for that and the recognition for the effort of my neighbors who have -- >> operator: thank you. that's time. >> thank you. i appreciate it very much. thank you. >> clerk: thank you. we will now hear from miss san gupta, the attorney. >> i'll be handling this. the verizon name for this

facility is the excelsior 11, and that may be the confusion on the supervisor. that's just verizon's internal name. verizon goes through a very rigorous process. we follow all the requirements of the city. we have to have review by three of the departments. we follow very stringent guidelines set forth by the departments, so all those codes, regulations, reviews are designed to protect the city and how these facilities are deployed while at the same time allowing verizon wireless to provide this service. you hear from mr. sanchez it's not an excellent view, it's not a view that -- the public view is not one that needs to be protected, and in fact, article 25 has been amended, and the state and federal law confirmed

that private views are not protected by article 25 or any of these public codes. and the brief by the department, actually, confirms that. but even so, we've come up with a design that we think minimizes any impact on views. with that, that really is our rebuttal. right now, this is the sleekest design that verizon has for providing public service. we face these with many agencies that require us to put these services on the bars, but it's the smallest that we have available. we urge you to approve this project and allow us to provide needed service to the community. thank you, and we're here to answer questions. >> clerk: thank you. we have a question from

president honda. >> president honda: can you confirm mailing to the supervisor, hillary ronen? >> i think miss gupta provided that. >> president honda: sure. can we get that once again? [inaudible]. >> president honda: you've got third party people doing this? >> do we show that the supervisors were noticed? >> president honda: do you notify each supervisor for each project or just the specific supervisor? >> yeah. the code requirement is that we notify the district supervisors, and modus can speak to that, as well. >> president honda: i'm looking

through it. can someone show that to me? i see ahsha's name, shamann's name. i'm looking for hillary. i don't see hillary. do you guys have her staff noted on here? >> this is [inaudible] chang with modus. we sent the notice to district 10 and district 11 per the address that the planning department provided us. >> president honda: okay. we have a slight issue -- we're very limited because of article 25. are you required to send it to the district supervisor because if you are, that means it was not sent to the district supervisor. >> let's confirm that; and maybe we're not.

that may have been a misnomer from our site. >> president honda: can i get the department to respond to that? is this an issue? i don't know who that would be. would that be leo or planning? >> leo, public works. so under section 1514, the member of the board of supervisors that represents the district in which the approved personalized service facility would be located, they should be notified. >> president honda: so what happens in this particular case, because they're showing a proof of service, and i don't see -- i mean, our scope is very limited because of article 25, but in this particular case, i see that there is an error in the permitting issue, so what would that entail, leo? >> well, we use the neighborhood groups to

determine, which is the planning website, to determine the neighborhood groups and associated board of supervisor that represents the area. looking at the organizations, there seems to be an error under that particular section because it does mention supervisor 10 and supervisor 11. >> president honda: i see shamann's e-mail and ahsha's, as well, but i don't see hillary's. i see supervisor swig's hand. would you like to comment on this? >> commissioner swig: i haven't missed you guys a bit. this is the stuff that fries my rear end, and this is continuing behavior, deja vu all over again. i still have nightmares about how d.p.w. posted a notice in a neighborhood with an italian flag because it was convenient

for d.p.w. to take something from another neighborhood in russian hill and put it in a notice in the sunset. the idea that somebody didn't proofread, put at&t instead of verizon. the idea that you didn't notice the district supervisor is careless. i want to have this whole process redone because what i'm hearing, and you know -- this is ptsd. this is coming back from many years of really being upset with you guys, all right? and i'll admit to it, and to -- and one of the things that i am really suspect of is that nobody public commented. that means, to me, that the neighborhood wasn't properly noticed, and so i -- i am suspect because i don't see

hillary ronen's name. i see an at&t venture versus verizon. i see lack of care. i see that you all were just going to get this done. >> president honda: vice president swig -- >> commissioner swig: but i'm kind of upset, and i think you might know this. i'd like to see this redone. >> president honda: i see scott sanchez raising his hand. is there anything you want to put in here? >> you would say that this is not all d.p.w.s fault, but any means, and there appears to be an issue with our neighborhood maps. looking at the map, this is listed correctly as supervisor 9, district ronen. it's listed as visitacion

valley, a small section of visitacion valley is in district 9, and it should have supervisor ronen, but it does not. it only has the supervisors of 10 and 11. that appears to be annen ror of ours. because at&t looks at it and not verizon, that was planning department error, so i want to take the blame for that. >> commissioner swig: it doesn't matter. it doesn't matter. the error is made. it doesn't matter whether it's planning, it doesn't matter whether it's d.p.w. this is under d.p.w.s umbrella, so therefore, i point to d.p.w. mistakes were made and proper care wasn't taken to care sure that noticing was correct. the supervisor in the right

district wasn't notified. d.p.w. should have known that the right map wasn't used. >> president honda: commissioner swig, i know you're hot. we've listened to hundreds and hundreds of hearings. let's get through this one. i think -- are we in -- >> clerk: no, we're still in rebuttal. >> commissioner swig: that was going to be my question to mr. palacio. my question to mr. palacio is why is this so sloppy and why didn't this get done properly, my questions, which i kind of relayed with my frustrations. sorry. >> clerk: sorry. please go ahead. >> well, we do our best with

every application to our abilities. we do rely on, you know, planning, and we do rely on d.p.h., and we rely on reference materials as a source. we tried our best to ensure that it does go with artificial at that 25 -- with article 25, and it's just within our reference to make sure it goes within article 25. we do our best, and it might be in this case that we can see that the district supervisor wasn't notified, but we don't just rubber stamp everything. we do our best with every application. >> clerk: okay. thank you. we are still on rebuttal, and i believe you were responding to commissioner swig's inquiry.

>> no comment. >> clerk: okay. mr. sanchez, would you like to participate in rebuttal? you have three minutes. >> okay. it's late, but errors were found. we can update because this affects other aspects of our work, as well. we'll ask staff to verify the neighborhood mailing list. my only comment on this is probably irrelevant now, but one of the issues raised was pardon the color of the antenna, whatever the process may be, when we do ask for the devices to be painted, it's to blend into the background. the background is the pole, and the pole is brown, but perhaps the vendor can look into painting the antennas to reduce

the impact, probably moot at this point, but i'm available for any questions. thank you. >> clerk: okay. thank you. we have -- >> president honda: actually, i'd like to hear from council albriton. i'd like this to be very, very short. >> i'll keep this short. we get notices from the planning department. we hope that you would approve the project as is, but i haven't confirmed with my client, but i'm just we'd be willing, if necessary, to continue for 60 days to notify the supervisor's office if you think that's necessary. in all my experience, we've never had a supervisor's office comment on one of these projects in my memory, and we have over 500 in san francisco,

but verizon is not trying ever to sidestep any of the noticing process. >> mr. givner: deputy city attorney jon givner. the board's mission is to determine whether or not the determination was correct. but in this case, it's the notice that the applicant provided after the determination was correct. the purpose of that notice is to inform the supervisor and surrounding areas about the determination so that members of the public can file a notice, be present at the hearing. that notice was defective in this case.

rather than reversing the department's decision, i think the appropriate remedy for the board here is to continue the item and require the board to provide abcat notice under the code. the notice is in the code, and the applicant can review it themselves, but that's what i would recommend in this situation. >> president honda: thank you very much. i think vice president swig has a question directed to you. >> commissioner swig: no, i just want to say that's exactly right. that's exactly right, and we have done this before when proper notice was not provided. this is the only -- on this piece of legislation, which is the article 25, this is the only way the public gets their day in court literally. >> president honda: can we go into commissioner -- can we

finish the rebuttal? >> commissioner swig: no, i thought we were done. who's next. >> clerk: yeah, we are done with rebuttal, and this matter is submitted. >> president honda: okay. >> commissioner swig: yeah, i agree with counsel. the only way that the public gets a fair shake in this deal is if they're properly noticed. they were not properly noticed, so i would recommend that we do what counsel recommends. i always listen to counsel, and get this done right. and then, if the public responds appropriately and affirms the direction or denies the direction, we're still here. >> president honda: commissioner lazarus? >> commissioner lazarus: i don't have an issue withholding off on this, but i don't believe that it was a question of the public not being noticed. we determined one mistake in

that the district supervisor was not included in that. the rest of the public notice process, as i understand it, for this case was appropriate, so i don't think -- i don't want to go that far, but i will support a motion to continue this to allow the correct designees to receive the notice. >> president honda: okay. so i'll start, too. commissioner lazarus, myself, and vice president swig have heard probably hundreds of theet -- these cases, and we are limited -- we have a very tight line of which we can and cannot do, and understanding that the departments have gone

through a lot of this on a regular basis, and it feels like it's rubber stamped, and this error only intensifies that thought. but this body has been sued by telecommunications, and we have fought hard and hard, and we've had hours and hours and hours of public comment and physical debate. this particular permit, there is an error in notification, so it is defective. as our deputy city attorney has recommended, we are not going to overturn the department's decision but probably continue this, allowing that the proper notification is complete so that this process can go forward. so they recommended 60 days. unless there's another suggestion, i would recommend that, as well. >> commissioner swig: is that a motion? >> clerk: i think -- i would like to ask a question of the deputy city attorney. since the notice was defective, shouldn't the determination be

reissued because the notice gives -- allows people an opportunity to appeal, and they haven't had that opportunity. >> mr. givner: i think the -- my suggestion is that the -- the determination stands. the notice period begins again so that the code requires the applicant to promptly issue the notice. because that didn't happen before this hearing, the board is now asking the applicant to issue a new notice, provided that the members of the public can file a new notice in 15 days. the 15 days for the new notice -- the 50 days for the appeal under the code beginning after the date that the notices have been provided. >> clerk: okay. but not necessarily the date on

the permit, the date that the notice was provided. >> mr. givner: that's right. >> president honda: and i see representing counsel with their hand up. we're already closed at this point. commissioner chang had a question? >> commissioner chang: if we're going to contain all the documentation that contained errors. >> clerk: that's a typo. >> president honda: well, they had the wrong company, and i guess because the way they labelled it kind of confused people, as well, and then, the staff information and timing, it was a bunch of stuff in a row, and that's why we'll try

to correct it. what is the recommendation, executive director? >> clerk: i would like to defer to the deputy city attorney, who's working tonight. >> president honda: boy, jon, you take one day from brad, and you speak more than he has spoken in four hearings. i appreciate your service, buddy. >> mr. givner: thank you. i would defer to the department for those corrections, the department and the applicant work together to make any corrections. i would like the board not to order any particular changes. >> commissioner swig: and i would suggest using commonsense and certain commissioner's energy, and that would be me, that maybe the department be scrupulous in putting forth

something that is clean and crisp and has been fully reviewed so we don't call them on it during the next hearing. >> president honda: i'm sure they're going to fix that. >> commissioner swig: i'm just making a friendly recommendation. >> president honda: don't get rick mad, seriously. let's finish this and close this evening off. >> clerk: okay. i would recommend it continuing it to either -- we can try and squeeze it in november 10. >> president honda: how busy is november 10? >> clerk: or november 17. >> president honda: let's do november 17. >> commissioner swig: i'll miss two of them. >> president honda: oh, my gosh, so it's going to be a shorter hearing. counselor, will that work for you, mr. albritton?

you're on mute, sir. you're still on mute. now you're gone. i jinxed myself by saying that we haven't seen you in a while. >> can you hear me? >> clerk: yes. we can hear you. >> president honda: yes. >> so much for high tech. i said 60 days, and i think i was hearing back to your taxi case or something. we can do it a lot shorter than 60 days. if your calendar is jammed up in november, we can -- >> president honda: we just want to make sure -- >> then yes, november is a fine date. that would be terrific. >> president honda: isn't that nice, and we probably get to see you. all right. counselor, thank you for being cooperative. >> thank you. >> clerk: so we need a motion. >> president honda: well, i'll make that motion to continue

this matter to november 17 so that the department can correct the notification -- would that be okay? >> clerk: so the permit holder can provide -- >> president honda: yes. >> clerk: the proper notification. >> president honda: yes, executive director. >> clerk: okay. we have a motion from president honda to continue this matter until november 17 so that the department can provide the proper notice under article 25. on that motion -- [roll call] >> clerk: so that motion carries 5-0, and the matter is continued. >> president honda: and we have no more business. thank you, everyone, for being here, and that ends -- >> clerk: and that concludes the hearing.

>> shop and dine in the 49 promotes local businesses, and challenges residents to do their shopping within the 49 square miles of san francisco. by supporting local services in our neighborhood, we help san francisco remain unique, successful, and vibrant. so where will you shop and dine in the 49? >> i am the owner of this restaurant. we have been here in north beach over 100 years.

[speaking foreign language] [♪♪♪] [speaking foreign language] [♪♪♪] [speaking foreign language]

[speaking foreign language] [♪♪♪] [♪♪♪] >> you're watching quick bites, the show that is san francisco. and today you're in for a real treat.

oh, my! food inspired by the mediterranean and middle east with a twist so unique you can only find it in one place in san francisco. we're at the 55th annual armenian festival and bizarre. this is extra special not only because i happen to be armenian, but there is so much delicious food here. and i can't wait to share it with all of you. let's go. armenia, culture and cusine has had much cultural exchanges with its neighbors. today armenian food infuses he flavor from the mediterranean, middle east, and eastern europe. >> this is our 55th year and in san francisco we're the largest armenian food festival and widely recognized as one of the best food festivals in the area. we have vendors that come up from fresno, from los angeles showing off their craft. we really feel like we have something for everyone in the neighborhood and that's really what it is, is drawing people

to see a little bit of our culture and experience what we experience weekend in and weekend out. >> we are behind the scenes now watching the chef at work preparing some delicious armenian kabob. this is a staple in armenian cooking, is that right? >> absolutely, since the beginning of time. our soldiers used to skewer it on the swords. we have a combination of beef and lam and parsley. and every september over 2000 pounds of meat being cooked in three days. >> after all that savory protein, i was ready to check out the fresh veggie options. >> this is armenian cheat sheet. it's tomatos and mint and olive oil. that makes summer food. and what i'm doing is i'm putting some nutmeg. it is kind of like cream

cheese. in armenia when they offer you food, you have to eat it. they would welcome you and food is very important for them. >> in every armenian community we feel like we're a "smallville"age and they come together to put on something like this. what i find really interesting about san francisco is the blends of armenia that come together. once they are here, the way people work together at any age, including our grandmothers, our grandfathers, skewering the meat, it's fun to see. fun to see everybody get together. >> we call it subarek. it's a cheese turn over if you want. we make the dough from scratch. we boil it like you do for la san i can't. >> the amount of love and karin fused in these foods is tremendous. they come in every day to prepare, cook and bake bread, all in preparation for this big festival. >> nobody says no. when you come them, they have to come tomorrow for the feast.

>> what a treat it is to taste a delicious recipe, all made from scratch and passed down through generations. it really makes you appreciate the little things. >> it's one of the best festivals. it's outstanding, a marvelous occasion. >> we're outside checking some of the food to go options. i grabbed myself a ka bob sandwich, all kinds of herbs and spices. i'm going to taste this. looking fantastic. one of the best i've had in a long time. you know it's delicious b i have just enough room for dessert, my favorite part. we're behind the scenes right now watching how all the pastries get made. and we've got a whole array of pastries here. honey and nuts and cinnamon, all kinds of great ingredients. this is amazing. here's another yummy pastry made with filo dough. oh, my god.

really sweet and similar, it's lighter. this is what i like. we have a lovely row here. looks like a very delicious and exciting surprise. i'm going to bite into it. here we go. um. this is great with armenian coffee. now we're making some incredible armenian coffee. >> we buy our coffee, they have the best coffee. they come from armenia, specially made. and would you like to try it? >> i would like to try. >> would you like sugar or no sugar? >> no sugar today. i'm so excited. really earthy.

you can really taste the grain. i think that's what makes it so special. really comes out. i hope you try it. we're having a great time at the armenian festival. we ate, we saw, and we definitely conquered. i don't know about you, but i have to go down to the food. check out our blog for so much more at sf bites at tums abler.com. until next time, may the force be with you. ♪♪ ♪♪ >> first of all, everybody is welcome and we ask two things when they get here. one, that they try something they've never tried before. be it food or be it dancing or doing something. and if they feel like it was worth their while to tell one person and bring that person, that family member, that friend down the street to come with them.

>> we're going to have to do a lot of eating so get ready. >> get ready. and you diet tomorrow.

>> chairwoman: the department of disability and aging services commission meeting of wednesday, september 1st, 2021, called to order. i'm the vice president janet spears. this commission meeting is being conducted pursuant to provisions of the ground act and recent executive orders issued by the governor to facilitate teleconferencing to reduce the risk of covid-19 traps covid-19transmissions at public meetings. the governor's executive order has suspended those rules. it requires we continue to notice meetings in advance. as noted on the agenda, members of the public may observe this teleconference meeting via sfgov