to thank you first of all. thank you for your report and i gust have one portion to do. disability some disabled people and all other but when some us are getting into that 6-month

period come up after saying that people need to go to the p.c. box. do you have any news on organizations in san francisco public health when it comes to -- that 6-month period. >> that's a good question. i think the advice i'm aware of, we will definitely check with public housing and specifically to folks with disabilities. if you are someone who is in a vulnerable, is more vulnerable to the impacts of covid, first

of all, it is recommended, do check with your doctor, but the city has public health, check with your doctor and, second dose boosters are okay. [please stand by]

>> at this point. i see no request for comments. >> great. thank you, debbie. okay, moving on to our next agenda item number 10. information item. any correspondence? do we have any? >> yes. over the past month, there has

been correspondence related to both the j.f.k. promenade and the great highway. there have been over 40 messaged received thanking the city. they say seem to be using a template because they are very similar in language. these messages are thanking the city for making j.f.k. promenade car free. also recommending that the great highway be made into a similar area where people with walk without cars or do other roles. in addition to those, there have

been over 150 e-mails that were received before the vote on april 26th. right after the last council meeting that were in favor of the vote that the board of supervisors took to make j.f.k. promenade car free. that is the correspondence that was received in the past month. >> fabulous. thank you, debbie. great to hear that. moving on to agenda item 11. the discussion item. board member comments or any announcements? any of our lovely councilmembers have any announcements they like to share? hearing none. seeing none. moving right along.

number 12. adjournment. any proposals to adjourn? >> this is denise, i move to adjourn. >> great. thank you, denise. have a great and safe weekend everyone. we'll see you next month. remember that third friday in june. thank you, everyone for coming to the meeting today. all the best. take care.

>> once i got the hang of it a little bit, you know, like the first time, i never left the court. i just fell in love with it and

any opportunity i had to get out there, you know, they didn't have to ask twice. you can always find me on the court. [♪♪♪] >> we have been able to participate in 12 athletics wheelchairs. they provide what is an expensive tool to facilitate basketball specifically. behind me are the amazing golden state road warriors, which are one of the most competitive adaptive basketball teams in the state led by its captain, chuck hill, who was a national paralympic and, and is now an assistant coach on the national big team. >> it is great to have this opportunity here in san francisco.

we are the main hub of the bay area, which, you know, we should definitely have resources here. now that that is happening, you know, i i'm looking forward to that growing and spreading and helping spread the word that needs -- that these people are here for everyone. i think it is important for people with disabilities, as well as able-bodied, to be able to see and to try different sports, and to appreciate trying different things. >> people can come and check out this chairs and use them. but then also friday evening, from 6:00 p.m. until 8:00 p.m., it will be wheelchair basketball we will make sure it is available, and that way people can no that people will be coming to play at the same time. >> we offer a wide variety of adaptive and inclusion programming, but this is the first time we have had our own

equipment. [♪♪♪] >> the 2022 hybrid meeting at the san francisco board of appeals. vice president and lazarus is the presiding officer tonight. commissioner tina chan and commissioner josé lopez. and also president -- present is

the deputy city attorney who will provide the board with any immediate legal advice. we will also be joined by representatives from the city departments i would be presenting for the board this evening. the deputy zoning administrator representing the planning department, having birmingham, the senior inspector, public works, the bureau of street thing, and the urban forest or representing the san francisco public works a bureau of urban forestry. the meeting guidelines are as follows. the board request to turn off or silence all phones are electronic devices they are not disturbed the proceedings. no eating or drinking in the hearing room. the rules of presentation are as follows. appellant's, permit holders and respondents are given seven minutes to present their case in three minutes for rebuttal. people affiliated with these parties must include their comments in a separate three minute period.

they have up to three minutes each to address the board and no rebuttal. time is limited to two minutes if the agenda is long or there are in large number of speakers. we will give you a verbal warning 30 seconds before your time is up. given that there is a vacancy on the board, three votes are determined -- are required for determination. please e-mail board staff if you have any questions. public access and participation are of paramount importance to the board. san francisco government t.v. is broadcasting and streaming this hearing live and we will have the ability to receive public comment for each item on today's agenda. they are also provided closed captioning for the meeting. to watch the hearing on t.v., '02 cable channel 78. it will be rebroadcast on fridays at 4:00 pm on channel 26. a link to the livestream is found on the horn page of our website. public comment can be provided in three ways. one, in person, two, via zoom,

go to our website and click on the ceiling or by telephone. call 166-99-6833 and enter the webinar ade -- id (838)266-4034. in san francisco government t.v. is streaming the phone number and access instructions across the bottom of the stream. to block your phone number when calling in, dial star 67 then the phone number. listen for the public comment portion for your item to be called and i'll start nine, which is the equivalent of raising your hand so we know you want to speak. you will be brought into the hearing when it is your turn. you may have to dial star six to unmute yourself. you will have two or three minutes, depending on the length of the agenda. our assistant will provide you with a verbal warning or two seconds before your time is up. there is a delay between the live proceedings and what is broadcast. it is very important that people calling in reduce the sound on the t.v. or computers or else there is interference with the meeting.

if anybody needs a disability accommodation, you can make a request to the board's legal assistant or send an e-mail to the board of appeals. the chat function cannot be used to provide public comment or opinions. please note we will take public comment first from members of the public were physically present in the hearing room. now we will swear in or affirm all those who intend to testify. please note that any member the public may speak without taking an oath pursuant to the rights under the assumption ordinance. if you intend to testify on any tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say i do after you have been sworn in or affirmed. do you swear or affirm that the testimony you are about to give will be the truth, nothing but the truth? thank you. if you are a participant and not speaking, please put your zoom speaker on mute. commissioners, before we get item number 1, the appellant for item eight a has requested that

his appeal be continued for one month because he is too ill to attend tonight's hearing. this would mean that another would be continued since it appeals the same determination. he has made this request via e-mail, and each party will have three minutes to address the board regarding the request. you have an option to take a vote or you can decide not to entertain it. we will hear first from the appellant for appeal number 22 dashes 026. welcome. you have three minutes. >> thank you. i would support the request for continuance for three with reasons. first, in the light of planning and permitting, an additional month is negligible. you can probably just ask that question of any developer who has spent 10-15 years to try to rebuild a few units of affordable housing. second, it would not be a hardship sufficient to the continuance. there were millions of dollars

on the line last year due to a continuance and that was insufficient to sway the board against a continuance. finally, is the neighbourly thing to do. he shouldn't have to live with this without having to opportunity to engage in civic discourse about it. and worst of all, be prevented from that dialogue because he is sick. if the shoe were on the other foot and the applicants were sick, i would hope it continuance would be granted for them as well. we all need to live next to one another. we should be gracious and treat others how we would like to be treated. i support the continuance. >> okay. thank you. is the permit holder's representative here to represent the permit holder? you have three minutes. >> i am actually victor marques. i represent the family. >> okay.

welcome. >> thank you. i represent them. they are not developers, they are a family. they will be living in this home with his elderly father. appellant feldman, we definitely feel for the fact that he is ill and we are sympathetic to that, however, he has a record of creating delays for this underlying project. i was professional with him at the first community outreach meeting. we spent a lot of time talking about this project. we answered numerous questions for weeks, not only for him, but for other neighbors. the project sponsor made a lot of changes to the nine to uphold

the color for the building. in spite of weeks back and forth in a very neighbourly fashion, he decided to fall a -- file adr for the project. in spite of the fact that staff fully were sport -- supported the project. when the hearing was supposed to take place, he requested a continuance at that hearing, which he is definitely entitled to do. ultimately, they voted 7-0 to approve the project. then we get to the subject of a tree permit that we requested, that my client requested. he was present on videophone. he had an opportunity to oppose the tree removal, and the hearing officer ultimately approved the permit. no appeal was filed. no timely appeal was filed on that. and then in february, he found a

technical error in the letter because the department issued the permit approval without putting the address, the underlying address. he proceeded to do that. now he is appealing to this board. he did not submit his brief on a timely basis. and on the day of the hearing he made his request by e-mail. well we certainly are sympathetic, we request that the meeting proceed. we are prepared to submit today. i believe that mr. click this also prepared to submit his arguments as he did very well in his brief. the alternative would be that we present and then mr. feldman be allowed to come back and present his case at the next hearing. a lot of resources have been

spent. we would love to be given the opportunity to present. thank you. >> thank you. we will now hear from the bureau of urban forestry. >> i have a question. >> we have a question. >> what is the hardship presented to your client as a result of this one-month delay? >> thank you, president. it is a number of things. it is a matter of family expense, significant resources and he has single-handedly been responsible for a ready about four or five months of delay. this would be one additional month. they don't have deep pockets. they are a working family. she is a baker who goes to work at 3:00 am in the morning to make ends meet. so it is a financial hardship, number 1. number 2, the record is very

clear already, which is before you. that they are willing to move forward and proceed with the replanting of the tree. i think it is also a delay for the community. it is not just the benefits of the community. we don't want to delay it for another month. i'm sorry. >> thank you. bureau of urban forestry? >> good evening, commissioners. i am with the san francisco public works the bureau of urban forestry. in general, the department typically supports continuances. we will note that we didn't receive a brief from the appellant this time around, and i do know that in the public record there is quite a lot of talk about opposition to third floor vertical development at that sight. so i do share the concern of the applicants that i believe this

appellant had time to submit a brief. at this point of -- in time, the department is prepared to proceed with the other appeal. that said, again, we want to air on the side of always giving people their legal rights. i do want to point that out that, in all honesty, i believe this issue is about the third floor vertical addition and not the tree. we and we do not have a brief. i am just a little reluctant to give the green thumbs up on this. thank you. >> thank you. so we're moving on to public comment. vice president lazarus, did you want to limit this to two minutes? okay. is there any public comment for this item? please come up to the front or raise your hand if you were on zoom. i don't see any public comment. commissioners, this matter is submitted. you don't even have to entertain

the request, or you could take a vote. >> i can start. in this case, i think it presents a greater hardship to the permit holder. i read the brief fully. i read the brief as it was presented. thank you for your clarity, as always. given that this is a tree issue, it is not an atypical tree issue. it is a tree issue much like many other tree issues, and not that anyone is more important than the other, i really feel that this board is prepared and fully briefed to move forward on this. i don't see any reason for

giving the permit holder anymore hardship. and as far as being sick, i am sick for the second week with covid. i have shown up for two weeks in a row. you know what, folks, that is why we have virtual meetings. let's go forward. that would be my point of view. other commissioners can chime in. >> i am sorry, put your microphone on. >> is this better? >> yes. >> i attend to agree with president's wake in this case that a continuance will pose a hardship to the permit holder. i do regret that the appellant is ill to attend, but it seems that there was sufficient time to submit a brief. i would be in favor of hearing the item tonight as well. >> i agree. i think, especially given that

we do have the individuals here with there will briefed information in front of us, i think that is an adequate basis for moving forward. >> so you don't need to entertain a motion. >> is that how commissioners wish to proceed? >> it sounds like it. unless you want to take a vote to deny the request. okay. >> we are all in agreement. >> the matter will not be rescheduled. we will proceed with those items when they come up. we are moving onto item number 1 which is general public comment. an opportunity for anyone who like to speak on a matter within the board's jurisdiction but is not on tonight count -- tonight's calendar. is there any member of the public who wishes to speak on any item that is not on tonight's calendar? okay. i don't see any. we will move onto item number 2. commissioner comments and questions.

>> none for me. >> okay. moving onto item number 3, the adoption of the minutes before you. the possible adoption of the minutes for the may 11th, 2022 meeting. >> any additions or any corrections? >> just a motion to proceed. >> okay. we have a motion to adopt the minutes. on that motion... [ roll call ] you know, i did forget to ask, is there any public comment on that motion? no. that motion did pass 4-0. thank you. we move onto item number 4. this is appeal 22 -- 033. the subject properties 1589 hayes street. appealing the denial all april 12th, 2022 on a retail tobacco sales permit.

no new permit shall be issued in any supervisorial district that has 45 or more establishments of tobacco sales permits. the business is located in supervisorial district five which has 69 a valid retail tobacco sales permits. number 2 per the health code, no new permit shall be issued if the applicant will be located within 500 feet of an existing establishments selling tobacco or a school. is located within 500 feet of two other establishments. they have valid retail tobacco sales permits and one school. number 3, per san francisco health codes, a change of 50% of more -- or more of the ownership within the business is deemed a change of ownership. provided, however, that if they are a corporation, a transfer

25% of the stock ownership shall be deemed to be a change of ownership. it is not able to amend the permit to the ownership change is specified. we will hear from the appellant first. i believe he is here via zoom. welcome. please go ahead. you have seven minutes. >> good evening, commissioners and san francisco public of health. my family has owned liquid experience since 1989. we have been members of the haight-ashbury can unity since 1984 having owned multiple businesses around san francisco. we respectfully request your approval for our appeal for the transfer of our license to the buyers of our establishment. due to my parents' declining health, they're no longer able to operate the shop they have

owned for 30 years. and because of covid, we decided it was in their best interest to sell the business. in 2010, my mother's mental health started to decline. and she was hospitalized. that is when we decided to incorporate to prevent the state from seizing any or all her assets. my mother's mental health has deteriorated significantly since and it is something we are dealing with daily. mental health is not something i nor anyone else should take lightly. it has been increasingly difficult operating the business and being my parents' sole caretaker. i took a few years to transfer all the licenses and because of my mother's refusal to sign any documents, she did eventually agree and here we are. we are not applying for a new license. we just want to transfer our current license or retain interest to other buyers. there are other avenues we can explore. and they have been explained and presented to us by the

department of public health by amending the corporation and adding the buyers' names, as long as it doesn't exceed 25%. any more than that, as you have mentioned is deemed to be a change of ownership. that process, however, will take five years to complete. indeed my parents' health, we wish to have this matter resolved sooner than that. we understand but the business itself was never sold. the original leases still in my mother's name. if the boat -- if the business was sold, then the lease would be transferred to my name. we appreciate the opportunity to present our case and want to thank the members of the health department. they have been very helpful in understanding during this process. thank you for your consideration in this matter. >> thank you. we will now hear from the department of public health. welcome. >> thank you. good evening, commissioners. i'm here on behalf of the

department of public health. with me this evening i have an inspector. i would like to make three points this evening. first of all, the board of supervisors has issued findings in section 19 h. .1 of the health code stating that, quote, it is in the city's interest to reduce the disproportionate exposure to tobacco outlets that exist among supervisorial districts and to minimize the exposure in all supervisorial districts by limiting the number of new tobacco permits issued. and quote. the health code implements this intent by creating a density cap for each supervisorial district, as well as placing other restrictions on applications. the intent of the density cap is

to reduce the number of overall establishments with tobacco. second, in this case, the department has determined that there are three separate grounds to deny the new permit application. the executive director listed those, but to recap, in this case there are more than 45 tobacco establishments in supervisorial district number 5. they are also within 500 feet of two other permitted permitted establishments. any one of these would be sufficient to require that the department deny the application. the appellant has not challenged any of these findings nor has the appellant applied for any exceptions to those findings, and an any case, the department determine none of those exceptions applied.

they did not have the discretion to grant the permit application. >> reporter: finally, they not preventing the appellant from selling their business to a new buyer. they are only determining that's because there is a change of ownership based on the change in the corporation, that there was a change of ownership and they require a new applicant, not a transfer of an existing permit as the appellant suggested. therefore, the new owners needed to apply for tobacco sales permit, which is needed to conform to the requirement. they have not prevented them from changing ownership or preventing the business.

>> thank you. >> we face these people about a year ago. it was particularly challenging. i continue to be -- i understand and i get confused by the intricacies. if i were the owner, sorry, if my parents were the owner of this business and owned a tobacco license and they passed, and obviously the ownership of the business had to change, and it had to change to myself as

their son, with this happened? what i lose my license because my parents left, and there was a change of stock structure in the corporation? >> if there is a change in stock ownership sufficient to trigger the definition of a change of ownership, then yes, there would need to be a new application and, you know, at that point, assuming one of the restrictions applied, then in that circumstance, you know, without knowing all the details of the hypothetical situation that you presented, then the new buyer would need to meet one of the exceptions. i just want to stress that in

this situation, the appellant did not apply for any of these exceptions and they determined they were in and not eligible. >> i want to dig a little deeper because i'm very sympathetic to the situation. he has disclosed publicly the issues with his mother and his parents. i am sympathetic to that. i have a 92-year-old mother. luckily she is in great health and great mind. but if, forcing into a conservatorship, if it would be difficult, in the same situation if it happened, it so happens that it doesn't seem a conservatorship has happened here, and they are just moving along in the process. what i fear is, and i'm sensitive to the fact that his parents ran a business, and help me with this, and help me

through this and they also helped the community. the parents had a lifelong business. they supported their family through this lifelong business. life took its turn and health matters intervened, and aside from this, they didn't do a conservatorship, but the parental unit is no longer able to maintain the responsibilities that they did before. what steps, and therefore, the result of their life's work, which, if it were my son, i would be giving him the business and let him be part of my estate. that would be the value i would give my children. how can this value be sustained to the offspring? what is the process? it seems not the intent of the city to ruin a state process

that would allow a child to benefit from their parents' hard work. what am i missing here? or what is missing in the statute? or what is missing in the process of the appellant that is taking away his ability to enjoy the state of his parents, which i'm sure they want him to enjoy? >> thank you for your question. i make a couple points in response. first of all, it is my understanding that the appellant says the primary business is a liquor store. the department of public health is not in any way preventing the primary business of the liquor store from being transferred to any subsequent owner. this is only in relation to the

tobacco sales permit. speaking to the broader point that you raised about how can the offspring or child of a small business owner avoided intricacies of conservatorship, i would put you towards a subsection to look at the exceptions to the restrictions that i have mentioned. it does provide where an owner of a retail food establishment or tobacco shop that holds a tobacco sales permit as of the effected date of this section, which was in january 2015, a child of the owner may apply for and the director may issue a sales permit to the child for the retail food store establishment or tobacco shop. there is a provision in the exceptions for the child to meet the requirements of that

exception and to -- [ indiscernible ] >> is there -- i don't have a total and clear view -- or i may not have a total and clear view of this entire story. and in my experience in hearing testimony after testimony, is some members of the public are not fully informed when they take steps to do things. this would be a tobacco permit. it could be a housing permit. not everybody is a legal professional like yourself. do you see a mistake that was made by the appellant during

this process which was a potentially naïve mistake or an ill-informed mistake because he doesn't have legal expertise? and is there another direction which might unravel this situation so that he can take another direction to sustain the tobacco permit? >> thank you again for your question. first of all, i point out that specialist rodriguez engages with applicants when they are applying and provides them feedback. based on their individual situations, which i understand she did in this case. even though there may not be an attorney involved, in all cases, the department is providing feedback. i think that, you know, practically speaking, if the appellant in this case wanted to avoid this situation, they could arrange their corporate ownership such that there was not a technical change of ownership triggered under the

definition of section 19 h. point to. i can't speak to the length of time that that would take, but both of these inspectors here -- i understand that their position would be that if there was not an arrangement that triggered a change of ownership, that this situation would not be pursuant. i do want to give them the opportunity to weigh in on that. they are the ones on the grantor implementing the application. >> can they do that for me? i think it is very important for this case. and this is part of your initial testimony in this period. i would invite them to shed light on this for the other commissioners, as well with the focus of canada another direction be taken?

is there an opportunity to right the ship before it sings? >> okay. >> can i speak, please? >> thank you. i am with the health department. specialist rodriguez is also available. she processes the application. from what i know is that when they change the ownership and became a corporation, i believe it was 2014, and this is where the details will be with specialist rodriguez. that is the new permit and the permit we had on file. it is with that corporation, which was not a soul ownership of the parents. and the original permit holder of the family. so it was that piece that doesn't allow them to be

considered a new owner under the law when density affects this. that was the history in where you are looking at the sticking point of how the department didn't have the discretion to issue a new buyer and to have them under that exception. >> is there an unraveling process that is available for this appellant, given that you just indicated that there was a transition issue between 14 and 15 and the law, and other activities within -- other activities going on in general. is there a way to unravel this or is it stuck?

>> it is, in my experience it is stuck. i think the health department, we really try to support these businesses and specialist rodriguez has spent a lot of time and the appellant says that they really appreciate her and so do i, to try and go over all the other different avenues. and the last thing -- we don't want to be denying permits if we don't have to, but i do not see a different avenue that would let the new buyer have the permit for tobacco. i only can see them being able to sell the business as a liquor store, which is the majority of the business. >> i just heard two pieces of testimony between yourself and the city attorney that would put

aside very quickly the value of a tobacco license as we heard last week from another appellant. it was unsuccessful. and we have heard from others. but now you have a tobacco license, it is very significant. it contributes to the value of business, even though it might be the minority of the sales in the business, it is still really important to the business owners. let's not -- that's why i am being particularly aggressive here because i appreciate that it does add value to a business and so it should be scrutinized thoroughly. we heard from your associate as well. >> as -- absolutely. do you want to hear from mr. rodriguez? >> yes, if she have something to add. >> i don't have anything to add. it occurred before i started.

i looked at the applications for 2021 and 2022. i was able to offer support with those, but i don't have anything to add regarding -- regarding to the 2014 change that occurred. >> i'm asking the same question to you. do you have any solutions to unravel this situation so that humpty dumpty can get put back together again and the owner can go forward with full value? >> the only one that we had shared was when if they are able to mend it, which they did disclose already. it would take five years, which is not what they want, unfortunately. they were not unable to undo the change from 2014. >> thank you for your good work and thank you for your feedback. i appreciate it. i yield. >> thank you. we're moving onto public comment. is there anyone here to provide public comment for this item? is there anyone on zoom who wants to provide public

comment? there is nobody so we will move on to rebuttal. you have three minutes. >> all right. , so, i don't know. i don't think this is reducing the number tobacco retail stores in that density, or in that area, considering we are still able to retain tobacco license through means of amending the corporation, and just adding their names onto the corporation as stockholders, as long as it is under 25%. i do want to say one thing about hate at tobacco, which is included in the density cap. they actually recently closed. so there is one other business.

we would be able to retain and transfer our tobacco license. >> what are we doing about the 25 years before that? what are we doing about those businesses? and we even have a legacy status, which we did not apply for again. my mother, in her health, is one of the reasons, but what about those 25 years?

so, i guess had we known that this was going to be passed in 2015 when we incorporated in 2014, that we probably would have done things differently. i don't know what else to say in regards to that. that is pretty much it. i appreciate your time. thank you. >> thank you. we have a question from commissioner lopez. >> yeah,, can you just speak for a moment to any efforts or exploration that has been made into, you know, a structure that would, you know, permit the transfer of the minority interest low that triggering threshold? is that something that you have explored with the buyer? i know this might be the deal

attorney in me, but i think there is structure you can probably pursue to accomplish the transfer without triggering the threshold under the statute. >> there are. as i stated in my brief and i said earlier, we amend -- we can amend this. will be willing to do so. however,, the pushback i am receiving from my parents due to that fact that it will take five years is the issue they are having with it. i don't see a problem with amending the corporation. i don't think it is an issue, but again, their health is my main concern, not anything else. i will go by what they are telling me to do. that is my perspective. i don't see a problem amending the corporation, however this is just the easier way of doing it, i guess. i already received licenses from the abc, from anything else that

i had to apply for. i would have to start all over again. the sale, with escrow, with everything. >> i just want to follow up on commissioner lopez's question. can you help us understand what impact this has? obviously your parents' health is an issue, but if you were to proceed with the sale, and changing the ownership, what is the impact of that? >> i'm sorry, can you repeat that? my computer was cutting out. >> that's okay. what is the impact of the five-year -- the fact that changing the corporation would take five years? can you explain what the impact to your business and the sale might be? >> i don't think there would be a direct impact to the sale of the business. i do see a direct impact to my mother. my mother's health.

she wants this to be over with. it is a liability keeping her name on the licenses. if the tobacco or the health department were to walk in and they accidentally sell to a minor. is that my responsibility or there's? i don't know where the responsibility lies in this case but i would be 50% or 51% owner on the business. there's also the abc's license. they both require everyone to be over the age of 21. we have done a pretty good job of that. thirty plus years of business. we have been busted once. it is nothing to be proud of, obviously, but the only effect would have is my mother and my father would both like for this to be over with because they are ready to move on. they are tired and i am exhausted. >> got it. thank you. >> thank you. we will now hear from the department of public health.

mr. lipton, you have three minutes. >> thank you. just in response to the technical and factual issue that was raised, i don't have any information about whether one of the tobacco establishments were closed, but there were separate independent grounds that the department relied on to deny the application. in terms of the fact that the corporate structure was changed in 2014 and a law was passed in 2015, i think it is unfortunate timing, but the department really is bound by what -- is by -- is bound by what the work of the supervisors put into the code, which is a very specific structure for sections. in this case, the appellant did not apply for any of those exceptions. even though the permit was in the name of his parents prior to

2014, that corporate ownership change really did put us in the situation that we are in. if there is no technical change of ownership under the definition in section 19 age 22, then the department would not be in this position where it would have to require a new application and subsequently deny it. in terms of trying to find some way to move forward, in terms of the department's perspective, that would be the way it would need to proceed. pending any questions again, thank you and i urge you to uphold the department's decision. >> thank you. commissioners, this matter is submitted. >> would anybody wish to start?

>> i am in a quandary on this. you know, this law, which had great intentions and, you know, was meant to stop the proliferation of the selling of tobacco and the proliferation of licenses, has come back to bite a few people in the wrong places. we have investigated it in this hearing. you heard me asking, is there a way around this according to the law. i have heard not other than a change in the business structure, which may fellow commissioner also suggested. i am having a hard time,

although i'm very sympathetic to the appellant, i'm having a hard time trying to figure out a way to support his wishes, even though i would like to. >> any other commissioner comments? >> sorry, it was a point of information from our executive director. what is the standard here? and if i could ask a question to our city attorney, do we see any grounds for discretion under the code in these assessments? or is this a pretty black and white situation. >> good evening, commissioners. the board of appeals is not in a position to grant a permit that would violate the code, just as the apartment of health is not in a position to do so. in terms of discretion, unless

you find somehow that this permit would not violate the code, then you don't have any further discretion. >> thanks. i think based on those -- on that advice, you know, i share the feelings of the president, and it just seems like a really bad spots that the business owner is in here. i also understand that we need to apply the code as it is. not as we wish it were. it is tough to find a way, an angle to facilitate what the appellant is trying to do under the code. >> i do see, in that spirit, sorry for interrupting, but to elaborate on what you said, you brought up to the appellant that

he acknowledge there was a way that it is not the optimum way, it is not what his parents wish to do, but there is a way for him to potentially get this done. this does not -- this is not an entirely closed-door, but what we are determining here tonight is this direction may not be possible according to the current statutes proposed. that's basically how i see it. it is unfortunate. >> i agree with what commissioner lopez and the president's sentiments are and i echo those. my only question is more rhetorical and something for the appellant to consider is whether or not in the negotiation of the deal structure -- [ indiscernible ] -- maybe it can be negotiated to alleviate those concerns. but given that there is a path forward -- [ indiscernible ] -- i would move to deny the appeal on the basis that the permit was properly issued.

>> okay. so, we have a motion from commissioner chan to deny the appeal and uphold the determination on the basis that it was properly issued. on that motion... [ roll call ] >> that motion carries 4-0 and the appeal is denied. thank you. we are now moving on to item number 5. appealing the issuance on march 15th, 2022 of a wireless box installation facility in the zoning protected location. we will hear from lisa parker who is an agent for the appellant. welcome. you have seven minutes. i'm sorry, miss parker?

i did see her earlier. >> she is on mute, julie. she is on mute. >> okay. miss parker, we can't hear you? >> hello? >> we can hear you now. welcome. you have seven minutes. >> hi, yes, my residents at providence senior housing came to me when they received the proposal to put up a verizon and -- antenna. they were very concerned about this issue. my social service coordinator did investigate and requested -- and she came up with some information. and if you would let her speak, since she investigated the situation. surely, are you there? >> yes, i am.

>> okay. good afternoon. i am surely foreman. and in assisting the residents, i did find out some information. i am not an attorney, so i will just share what i have found. we found and learned that so phone variations include significant threats to human health and the environment. we also learned that it is quite clear that the risk of radiation exposure, technology can be significantly lower radiation exposure -- exposure, but that would come as a cost to the industry. also, why are we concerned about the placement of the cell

towers? it is a large and growing body of evidence demonstrating that exposure to cell phone type radiation is harmful to humans and the environment. also, the difference between the different signals is they are transmitted to a high-frequency, different device types depends on -- [ indiscernible ] what does the antenna due to the cell phone signal? it is like a flashlight. once the flashlight is being pointed to, the antenna works the same way distributing frequency problems. the antenna also was once put on top of a firehouse, and the way

that the antenna was installed, many firefighters developed unusual symptoms. headaches, fatigue, insomnia, memory loss, confusion, nausea, and weakness after having time in the firefight search firefighter station. they were also found to have been a forgetful of some things. so, the key question is, what is a safe setback for the placing of the antenna or the cell tower? and we found that a distance of 500 meters.

>> i want to add that we do have 66 residents that reside at providence senior housing, and they are very concerned about what could develop with their health from having this antenna so close to the building. i also do have one of my residence here and she wanted to speak. go ahead.

>> please go ahead. >> hi. hello. [ indiscernible ] i am one of the residents at providence senior housing. regarding the antenna, it is a little bit concerning. it is too close to our building. based on the reading on the proposal, it is really out of date. [ indiscernible ] they only lift the antenna to our building.

i don't know how the city -- [ indiscernible ] it is regarding our house. we are not using five g because they noticed this antenna. too much radiation for our health in the community. they installed this antenna close to our building. it is very concerning. [ indiscernible ] [please standby]

the the antennas are not going towards the building, you can see this antenna is facing down mckinnen avenue and up mckin'

avenue towards 3rd street. with respect to the health and safety issues, i'm actually going to call on bill hamut to comment on the concerns raised by the senior center representatives, but i do want to add that we previously reached out to the senior center representatives and offered for bill to come and meet with them and explain this facility and that offer still stands. we're happy to have bill come and do that but, bill, if i could defer to you to address the health and safety concerns by the neighbors. >> yes, i'm happy to address those concerns. for the record, my name is bill hamut and i'm a registered engineer in the state of

california in that time, we've done more than 20,000. the exposure levels and how do they compare to the standards. the presentation you just saw with this slide is exactly correct. these are two antennas, they are not oriented towards the building. they are oriented up and down the street to provide service in those directions and our study indicated that the maximum exposure level at the building itself a little over 4' away. that's 20 times below the federal safety standard. and i don't think there's any question that the facility as designed will comply with the federal requirements and, as

you know, the u.s. congress. more over the city requires that these facilities be certified for their compliance by measurement. once a facility like this is constructed, we come in with our bucket truck. we make sure the antennas are oriented in the way they're proposed. we take measurements at the building face. all of those exposure levels have to be less than the federal safety standards. not only we calculated they are going to comply, it's the measurements that will prove that after the fact if it's designed that it does comply. i routinely speak in neighborhood groups and answer questions and talk about the standards and where they come from and how the health impacts work and what the studies show

and i understand that my participation in such a meeting was offered and i can confirm that if the residents at providence senior housing would like that, i'm more than happy to come and make a presentation and answer any and all the questions regarding this. if there are other questions, president swig or commissioners, i'm happy to address those. >> just before we move to questions, i just want to expand a little bit on what bill said. while it's correct that the s.e.c. pre-empts local authority, san francisco is very rigorous about this. and so bill has to prepare a report as part of the permit application which d.p.h. reviews and basically peer reviews and makes sure that his conclusions are accurate and his conclusions here were that the exposures were less than 5% of the f.t.c.'s limit. and in addition to that as bill

mentioned, after the facility is built, verizon will offer post installation testing to any neighbor who requests it. so if anybody at the senior center wants to have testing done from their unit or their building, bill will go out with his meter and take those measurements at your residence. >> secretary: thank you. so we have a question from president swig and vice president lazarus. president swig, please go ahead. >> president: yep. unmuted. as you know, we have heard in the hundreds of these issues and in particular we get to be extra sensitive about special situations, i would consider

special situations to include schools, to include hospitals, fire police installations, churches and temples amongst others and, as you well know how many alternative sites were reviewed as an option putting this antenna directly next to a senior living facility? >> thank you so much for your question and just to clarify,

neither san francisco's code nor -- well, i should let bill speak to this, but neither of them have different standards, you know, based on as you were saying churches, schools, etc., they go with the lowest one. and also, your code doesn't require an alternative analysis, but, again, verizon is part of the community and they want to pick the best poll, the least intrusive poll to serve the area and there was an alternative site analysis here. as the neighbors have said, this is a 5g facility and so 5g has less flexibility in terms of location than 4g did which is why you see these polls here that we studied. this is 3rd street right up here and over here is mckinnen, this is the pole we've chosen and these are the other utility light poleses, traffic poles

that are in the area, and let's walk through why each of those were excluded from consideration here. so this is a decorative light pole. you can see it's at the corner of mckinnen. sfmta doesn't allow mckinnen to have wires on traffic lights or poles that are decorative in nature and so this pole is prohibited. this is another pole which is on the opposite side of the street. you can see there is a traffic light here as well. so this pole is prohibited on if this equipment weren't present in order to locate on a pole like this, we would have to replace a pole that was 10'

to 15' taller than what this pole is pursuant to pg&e. >> can we pause for a moment? alex, did you lose the zoom connection? >> not that i'm aware of, but tell me if you did. >> secretary: i just want to make sure we have it. my computer. do you have it? okay. so because these poles are owned and regulated by pg&e, they have their own standards that govern which types of poles carriers can be on and there's a specific pg&e order which says if there are certain types of equipment present on the pole, then a carrier can't put a wireless facility on it. so this is a transformer and because this is located on this pole, we're procolluded from

putting a wireless pole on it. and the last one we looked at is on the opposite side. does not allow wireless facilities and so i appreciate the question because verizon does a lot of due dill against to make sure they're picking the least intrusive most ideal pole based on lots of criteria and, unfortunately, this one was the only feasible one in the area. >> yeah, it looks like i know the area, it looks like that was all within a block or so. was that the extent of the scope that would be practical

for what you're trying to accomplish technically or could you have looked broader outside that block? >> i previously mentioned in short hand. 5g has less reach than 4g does, and so wouldn't meet the target service area and that's why we didn't look at because my explanation was that it woond fill the service. >> secretary: okay. we will now hear from the

please go ahead. >> hello, can you hear me? >> secretary: yes. >> great. good afternoon president and vice president and members of the board. we believe this was in compliance with the board article 25 requires public works the department of public health and the planning department. both departments determined that this application complies of article 205. as a result they're after the mail posted notice of the final determination. public works then issued the permit. the planning department is in attendance and can speak more to the planning review.

>> secretary: president swig has a question. >> president: sure. i think this is our first 5g installation we've had appealed to us. is that true? >> it could be. >> president: in that context, was there any further health review done? are you aware of any further health reviews being done to the effects of 5g versus 4g, versus 3g on the public and in the context that we're still dealing with in my view obsolete legislation that was created in 1996 and were or we're building our opinions based on the 1996 piece of legislation that was reviewed i believe in 2008, yet we've had

significant changes from 3g to 4g, now 5g without even the nod of approval to review it further by our own department of health. but do you know whether there has been a change in health risk as a result of 4g to 5g? >> i know that the department of public health does know that the type of technology being processeded, i must follow what the f.c.c. radio frequency density levels are which also corresponds to the public health compliance standard. so it all goes to the same review. this could be 6g. it would all be going to the same review as long as it meets the radio frequency, you know, guidelines, if it's below the public health guidelines and health reviewed it and they determined the application is

compliant. i know that, you know, there were some concerns just from comments regarding the health aspect of it and possible radio frequency emissions and i know that the permittee spoke on n. they have their engineer go to the site and do the test, but just on the city aspect, you know, once if this does get approved, then they have to submit a, you know post radio frequency study that the department of public health reviews also to show they're in compliance. and let's say a member of the public wants to speak to verizon, well, they can also speak to the department of public health or me and we'll coordinate a time to have an inspector go over there and also take measurements of the facility just to ensure that the public knows that the levels are what the permittee

is saying it is. >> president: thank you very much. and i hope that the senior housing facility does take you up on your offer to make them feel more comfortable if their appeal is denied. thank you. >> secretary: thank you, does the planning department want to weigh in. okay. welcome ms. tam. >> good evening president swig, vice president, and members of the board. i'm tina tam, deputy zoning administrator. the project is to install a wireless facility at the southeast corner of 3rd street and mckinnen avenue. on the lower level and housing above. a d.p.w. referral was sent to the planning department and on march 2nd, 2022, the wireless planner determined that the

proposed facility met the standards. the department included that the facility would not detract from the character of the neighborhood or call to any impacts potential or known historic resources. it has undesignated views. the facility is designed in a streamline manner, shown in the photo simulations or designed as an extension of the pole and the equipment box will be painted to match the pole to minimize the visibility. the project is consistent with article 25 of the public works code in the objectives and policies of the general plan. >> secretary: okay. thank you. is there any public comment on this item, please raise your hand is there anyone on zoom who wants to provide public comment? okay. you have time for rebuttal. you have three minutes.

>> okay. well my rebuttal is i feel that there is enough proof that there is a safety issue and there could be a safety issue for our residents and are we willing to take a chance on their health and safety? you know, you could say the test said this, but there has been proof in the past that this has been a danger to people and, you know, you could overlook it but the proof is there that this could be a hazard to the radio frequencies, the 5g, all of that could be a health and safety issue and our residents deserve more i feel, our seniors deserve more. i shirley wants to say

something too. >> i would just like to say the issue is not the permits and so forth that has been sought after and all the work that you have done, the issue is like alisa said, it's a health issue. and the gentleman that spoke about the s.e.c., it's been historic decisions that the federal court orders s.e.c. to explain why it ignores scientific evidence showing harm from wireless radiation. so the s.e.c. has yet to explain why there's harm to people. so, with that in mind, i just don't know if we should go forward with this. thank you. >> secretary: thank you. we will now hear from the permit holder. you have three minutes. >> just a couple of points of

clarification before i turn this back over to bill. this isn't the first 5g facility that this board has seen. the last several that you've seen from us have all been 5g appeals. i think the last four or so. i also wanted to make clear that after a wireless facility is constructed, there's additional testing done by verizon and it's submitted to d.p.h. and they review that testing as well. if i could ask bill to address the question that president swig asked about, you know, changing generations and iterations of technology versus what the f.c.c. standards are, that would be great, bill. >> i'd be happy to address that and president swig, the standards have been undated several times in the intervening period since they were first adopted in 1996 at the direction of congress. most recent update was in 2019

based on the scientific body of evidence that had been created during the intervening periods. the standard that applies in europe was updated in 2020. the f.c.c. is monitoring those developments and reissues its rules which were recently updated in 2019 with particular emphasis on compliance with those rules. so it's the standards are based on current science and people continue to do research in this field. the standards have not been tightened over that period because the studies and the opinion of the standard setting bodies, the studies have not shown the necessity for tightening the standards. there's some excellent phrasing that the no verified reports of adverse effects on humans at the exposure levels equal to the standard.

so it's current science and in terms of the court order for the f.c.c. i'm not an attorney, but the f.c.c. was did a thorough job on the issue of looking at human impacts particularly cancer is one of the things that they do studies on. and they remanded it back to the f.c.c. for consideration of other issues that is not one that's commonly referenced in the scientific literature. but the standard is the controlling document and it's been revised and updated many times during this period and the requirement is always that the carriers must comply with the standards. i will say also the offer to have measurements taken inside the residence units inside the

housing project -- >> that's time. >> secretary: okay. thank you. we will now hear from the bureau of street use and mapping. anything further? >> hello. no further comments. >> secretary: okay. thank you. anything further from the planning department? >> i have a question. >> secretary: go ahead please, commissioner. >> commissioner: the permit holder mentioned post installation testing going forward. can you just say a word about, you know, what the recourse or compliance or enforcement activity would be should there be something surprising or abnormal that you see in those post installation tests? >> yes, that hasn't happened, but if that were to happen and the radio frequencies are way above the public health compliance center and the f.c.c. limits, then we would need to take corrective measures and it could go up to revoking the permit.

>> commissioner: got it. thank you. >> secretary: thank you. commissioners, this matter's submitted. >> president: i'll start. here we go again. so, miss parker, i am very sympathetic to your position. we have heard others like yourself with great concern. others like yourself that have represented the most vulnerable which include the seniors, which include little children as well in their early stages of development and we have had mothers literally crying in our presence at the dias scared for their child's health and you can't help after several years and many dozens or hundreds of cases to become sympathetic,

concerned about the whole situation. we have seen reams of paper come be presented in front of us that would lead you to believe that every piece of evidence presented by verizon's council and the esteemed mr. hamut were buckets of lies and we've seen from mr. hamut's firm and from council the opposite. there are buckets of evidence on both sides that support each other's position. and i for one am concerned much like yourself. however, that being said, this body is governed by article 25 which is a piece of legislation

that kind of ties our hands. we have to pay attention to the to a statutes. we have to pay attention to the limitations which are presented to us based on the f.c.c. findings, based on the state, local, and federal legislation and therefore time after time even though we don't feel good about it, unfortunately, we have to deny appeals because of these statutes. so, in this case, i'm sorry, but i think we're going to have to deny your appeal based on your substantiative questions about health al beit they are refuted by council and refuted by legal statute. of i'm very sorry about that. so i would move to deny the appeal as a result.

>> secretary: is there any further discussion among the commissioners before that motion is read? commissioner lopez. >> commissioner: yeah. the one thing i will echo, president swig's comments and also would be remiss if i didn't mention to the appellant that i live in the bayview and we have seen a number of these cases during my time on the board. i will add that other parts of town get these towers as well. i can think of one recently that was in front of a beautiful historic home and we get these out of pack heights and it's not just the bayview. they want 5g reception in those parts of town as well. so i did want to clarify that and also echo what president swig mentioned about the extent to which, you know, within

limits, our hands are somewhat tied in these cases. so just whatever that's worth. >> secretary: okay. so we have a motion from president swig to deny the appeal and uphold the permit on the basis that it was properly issueded. on that motion, [roll call] so that motion carries 4-0. we are moving on to item 6. subject property 1024 capp street. an alteration permit construction of a new accessory dwelling unit building in the rear to the west of the property. permit 2021/0224/5270. and we'll hear from ms. ortega

first. if you can pull the microphone closer to you. >> hello, good evening, president swig, and fellow commissioners. i am appealing the construction of a new adu 3-story unit with a roof top deck that will be behind 1024 capp street which i'll indicate as the project that will reside on lilac street. my family and i are in need of residents who have lived in the mission district in the community for over 50 years. we enjoy our space for relaxation, family gatherings, barbecues, sun space, and to enjoy the privacy of our back yard. the project violates residential design guidelines by creating unreasonable privacy impacts. the residential design guidelines require for building expansions into rear yards to minimize impact on light and

privacy to adjacent properties. similarly, the guideline cites that san francisco planning code section 101 with the purpose of planning code to provide adequate light, air, privacy, and convenience of access to the property in san francisco. for instance, the guideline provides that while planning code allows for a 3-story addition extending into the rear yard, the addition can be substantially out of scale with the surrounding buildings and impact the yard opening space. the project does not comply with these principles as the 3-story adu unit will have unusual impact on our privacy in the back yard. furthermore, the project will be able to be viewed from our windows facing the rear of the back yard. the project does not comply with overall neighborhood

contact and visual character. in other residential properties which i'll say as lilac, there's no 3-story adu units extending into other neighborhood rear yards. and what appears to be a plan of roof top deck and wrap around extension deck, the design of this project will disrupt the ongoing visual character of the neighborhood along capp street. the guidelines provided that through each building will have it's own unique feature. proposed projects must be responsible to the overall neighborhood contents. a sudden change in the planning will be very disruptive. furthermore, section 101 of the planning code established priority policies to conserve and protect existing neighborhood characteristics. i have yet had any communication from the permit holder during this process to have any compromises to this

adu project. with the permit holder mentioned in their brief on page 1 that the proposed project has not yet been broken. its permit has been appealed in this case which is not true. they have broken the concrete in the back. they said on page one that we had a pre-meeting, pre-application meeting with my aunt and i at the property. and during that time, they said that we did not have any questions or concerns which is not true. i did ask questions pertaining to my family's property, the concerns of the height and the concerns of the light exposure. and at that time, he only raised his hand to the sky and said the sun would not go in our back yard. page 4, it says the applicant if we did not have a garage structure on the property, we would have more light and open

space yet we've been native to this property beforehand. page 5, the whole area in question is a narrow space between the main building on the applicant's property and the garage structure in the rear that faces lilac. that has concrete paveded between the two structures which is not true anymore since they already cracked and removeded the concrete. now, page 6, which is they also mentioned that the subject block of lilac is a visual asking for improvement. more currently looking like a graffiti art festival than a unified maintained neighborhood which is not true. this is about the mission district. we are about art and yet both lilac on between 24th and 25th and 25th and 26th, we have this graffiti or you call it artwork to reduce graffiti artists damaging peoples' properties

and when you damage properties, the city comes after you and fines you. therefore, this is actually a -- this is what the neighborhood is all about is art. and they said on page 7 that we had no prior negotiations when we did have the meeting on back in 2020 which is not true. i want to also if you can pause. >> secretary: okay. we can see it. >> i'm going to use the photos that were given to me. and here is the garage and here is where you drive down the alley. i specifically had a local artist by the name of ricky watts and he had put this

beautiful artwork which nobody has destroyed and it has been there for sever l years and i wanted to give the example of the properties. you can also tell by the face of the honey bucket in several other photos the way that the sun faces, it will be directly into our back yard. and here also giving other examples of items throughout the street. i'm going to go ahead and close this and go back to my pictures. now, this is directly from my back yard and i have taken several pictures throughout the day. this is at noon. and as you can see on the right, this is a honey bucket port-a-potty since i could not

afford an analyst i'm kind of using that as a shade. that would be directly into our back yard. this is the project area at noon. again at noon. and i'm just going to go through these really quick at 3:00 it. now, i want the adu unit either to be revoked or modified by reducing the size. i also ask that either a sloped roof to allow natural sunlight and making window facing rears perhaps with frost for privacy. thank you. >> secretary: okay. thank you. is there any representative for the permit holder here? is mr. volkov here? welcome. you have seven minutes, sir. >> thank you. good evening, commissioners. >> secretary: if you could

please speak into the microphone. >> thank you. i'm here to speak on behalf of the permit holder. the permit holder is here present with us if the commission has any questions as well as the engineer who drew the plans and who did the meeting in question. i'll start with the fact that a shadow analysis in a light direction is not a part of consideration of a small residential project such as the one at hand. the planning code addresses it for buildings over 40' and in the cases where it cast a shadow or shades an open space, a public open space or park which is not the case here. that is with regard to the light observation in general.

i also want to say that the images shown, i did not bring a laptop with me, but i had it in exhibit so the commission should have it in the. >> secretary: we have an overhead if you want to show the pictures. can you pause the time, alex. and if you can help him with that, i'd appreciate it. >> secretary: you had it the right way. >> this is one of the pictures taken from the appellant's brief provided for the area in question. you can see that there is vegetation between the properties and this building which is shown by that on the

presentation on the other side, the pictures i provided in my brief, that already has a three-story building, a preexisting building on the side, one to talk about the higher public, the graffiti artist facing that, so our building is coming on the other side and i'll show you the google street view. this is the subject lot, the blue and this is the appellant building and this is a three-story building on the other side. and the direction of sun goes from as we know from east to west, this direction alongside

those parcels. so, yes, there could be in some seasonal angle an overcast, but that's not the source of the sun coming from our parcel to the appellant's parcel and if we build the adu, it will make it entirely blocked. on top of it, you can see that the unit in question which i'd refer to in the brief as a garage because that's how it appears to be doesn't have any windows. does it have windows on the area in between. and it doesn't have windows on the front where we saw the graffiti pictures and it doesn't have windows on the side with our parcel. so that unit in question is not concerned with the light of the

days. however, what is important and this is one of the pictures provided by the appellant, the windows of our property, of the already existing building. i'm showing right now the window in question for which you can already observe the area of the appellant's building. i personally went in and took this picture. you can already see inside the window of the building, inside the deck. and inside of the walkway as much as the vegetation allows. we're not affecting the vegetation. sorry, i'm switching kind of fast, but the vegetation in question if it provides privacy, it will continue providing privacy. however, as far as a higher point of observation of someone standing above and looking out

to this kind of pavement, that part is already there. the existing building has windows from which you can observe of the neighboring sites. i saw in the agenda, there is a letter from the other neighbors. we were not served with it, but i just went and downloaded a copy and a similar window looks into their back yard just as much. and that's already there's no additional exposure.

this deck on just one side of the building facing the lilac street. it doesn't face the sides. it doesn't face the building. it faces the lilac street. this is an important part and as far as the meeting i've heard the appellant that the preplanning meeting took place and i heard her disputing whether she had the questions or the notes. there were no questions. however, i put it in my brief. it is possible there were questions, i wasn't there, but i don't know why those questions took three years before they became heard. so that was in my observations and as far as graffiti, it might be art. i'm not a specialist to say whether it's good or bad, but i submitted a detailed walks i

took on the lilac street it's in your briefs of the street line and the roof line of lilac, it has all kinds of heights. this is mr. vato who was in the meeting. he can respond to questions. as far as the neighborhood character, you can see there is residential buildings, commercial buildings, garageses, all kinds of profiles, all kinds of heights heavily covered with art. i have no judgment on that. >> thank you, that's time. >> secretary: okay. thank you. so i don't see any questions at this point. we will hear from the planning department. >> thank you, tina tam once again for the planning department. the subject property is in the r.t.o. residential transit

oriented mission zoning district and a 40x heightened district. the property is a lot on both capp and lilac street. in 2020, the owner submitted plans to convert the building to a three-family dwelling. that permit was approved and issued in 2021. the scope of the permit before you today and a separate three-story building for one adu at the rare portion of the property. the adu will front and have direct access on lilac street. the adu will be approximately 1600 square feet in size and measure 30' in height. a preapplication meeting was held on march 26th, 2020. including the appellant attended this meeting. the notification took place in october 2021. a mail notice was sent with a

set of reduced plans to all owners and occupants within 100' radius. a notice was also posted in front of the process for 30 days. the appellant, ms. ortega is the neighbor to the north of the property. her issues about light -- are about light and privacy impacts as well as compatibility with the surrounding neighborhood. she also believes that no adu should be added to the property because the previous tenants were evicted. when the new owners purchased the property in 2019. ms. ortega is correct, no adu should be added if there was an owner move eviction in the last five years or a noteful eviction in the last ten years. there's no record of any eviction on the property. records do show that there are two buy-outs between the

tenants and the owner. buy-outs are not the same as eviction under the code. therefore, there are no restrictions about adding adus to this property. the design of the adu was reviewed by the project planner and determineded to be consistent with the residential guidelines. the heights of the adu are consistent with the overall character of the neighborhood. in the immediate context, it's common for buildings to be built entirely in the rear yard. the neighborhood contains a mix of tall ones and mostly two and three-story buildings. the proposed third story is set back about 10' from lilac street reducing the overall scale and massing of the building. the roof deck is also set back 5' from the rare and five property lines to minimize any potential privacy impacts to the nearby neighbors. ms. ortega claims she did not

receive a written notice or had any opportunity to negotiate with the owner about the project. as mentioned, ms. ortega attended the free application in 2020 and was aware of the project for more than two years. ms. ortega did not. the project will add an additional dwelling unit to the property. it's been designed to minimize potential impacts to neighbors. windows are limited in size and located only on the front and rear elevations. no windowers are prepared on the northern and southern walls. and the permit is to deny the appeal and uphold the issuance of the permit. >> secretary: thank you. we have a question from president swig. >> president: thank you very much. i think this is the first time

we've seen a free standing adu proposal most of what we are used to seeing is garages that are being converted to adus, illegal previously being illegal so-called inlaw units or grandmother units being converted to adus or storerooms in apartment buildings that, you know, could pass for illegal lodging to be used. this is the first free standing one that we've seen why would not the developer -- why are they building an adu is or why is this an adu versus a straight ahead new building to an existing property?

what am i missing here. >> well that's what's proposed before the planning department. i can't answer why there isn't much of these detached adu projects. i suspect it may be because and so when you don't have two frontages, you might only be considering adding to the existing building at the back. i'm just speculating, but it is a. >> president: one of the advantages being an adu versus straight forward, let's build exactly what they're doing except not calling it an adu and not having to comply with adu rules. >> so the building at the front

is previously two units. they did go through a permit last year and i believe the maximum number and so this is an extra unit. this is their bonus permissible under the local adu program. >> president: okay. if it were not an adu, it would not be permissible. >> correct. >> president: okay. and the other thing that's been brought up is open space and i see that the neighboring properties they certainly don't have a lot of open space in their backyards but many timeses one of the discussions that's not a discussion here but i'm just interested is why is this being permitted given the amount of open space and

the back yard that it will be occupying. is this a noncompliant lot? what's going on with that thanks for l question. i don't think it's consistent with other lots in the neighborhood it dpunt have the structure whereas many of the properties in this block have a structure of some sort, a garage or some sort of tall building at the back and this proposal sort of fills in that gab and in our opinion consistent with the development pattern in that neighborhood. >> president: to the development pattern in the

neighborhood overrules. your predecessor scott was all on that back yard open space and even if it was 1" over the line, there was a rigor associate wednesday that that would prevent the building. so i guess i've been brain washed by your predecessor who was also your successor and in not being sensitive to that issue and it didn't seem to matter in his view that because obviously appellants would bring it up to us. it didn't matter in his view that there were other situations in a neighborhood where there were things like

garages or outbuildings that were legacy buildings should we call them and but the building of a new building that obliterated too much open space or back yard space was still not compliant with statutes. so that's why i ask the question. what's your read on that? >> let me make sure that i'm clear. so there is usable open space and there is rear yard. so there's no sort of exception to the open space that i know of. the project complies with the open space. there's a deck for the new adu. so the amount of open space that's required by the code is being satisfied on the property. >> president: i see, so the physical square footage covered by the building because there's a deck that's going to cover the top. that replaces the raw land or open land that would otherwise

be available in the back yard. is that the answer? >> in terms of open space. and then there is rear yard so you're correct, we have a rear yard requirement. however, with three lots where there's two frontages, you can transfer your required rear yard to the back of your lot to the middle of your lot. and the new adu at the back. there was a waiver a rear yard waiver as well as an exposure waiver that was granted by the v.a. by this project. >> president: so my questions weren't out of bounds and you've just answered them all perfectly and i appreciate it.

it was worth asking the questions. thank you very much. >> secretary: okay. thank you. we will now hear from the department of building inspection. go ahead. commissioner lopez has a question. >> commissioner: sorry. one more from me. thank you for clarifying the point that we saw in the briefing about the ordinance related to the eviction history. or lack there of, rather. knowing that there were buy-outs, though, are you aware of any local or state law that would imp split. >> the code only talks about eviction, the two types of evictions. >> secretary: thank you.

we'll now hear from the department of building inspection. welcome. >> good evening president swig, vice president, members of the board. i'm representing the department of building inspections. we believe that d.b.i. has reviewed the permit and it has been properly vetted and it should be approved thank you. >> secretary: okay. thank you. so we're now moving on to public comment. i see a couple hands raiseded. is there anyone here in person for public comment? are you related to the party though. i understand that's the permit holder, right? because if you're related to one of the parties, you can't speak during public comment. okay. please come up. >> hi everybody. i'm the director of housing for our home sf which is a nonprofit organization funded

by the mayor and we rent a property just a few blocked down and we have housed 15 transgender and transgender nonconforming people and we just want to advocate for the services and the respect for the culture of the mission specifically as, you know, hoping to be able to house additionally extremely marginalized people of the neighborhood and the community as much as we want to respect the space and the history there. this is a super important cause to be able to create more space. the other property is also a three-unit house with three separate which houses 15 people. so having more space to house marginalized people and address homelessness in the mission is valuable to us and we've just been really grateful to their partnership as we are advocating to the supervisors

to continue to get more subsidies, more transpeople that will continue to increase. it's just been super positive impact on san franciscans transgender and unhoused to have partnerships like with block living, thank you. >> secretary: thank you. did you fill out a speaker card? that would be great if you could fill one out. anyone else for public comment who's present in the room. i don't see anyone. we'll move on to the caller whose phone number ends in 0573. you may need to press star 6 to unmute yourself. 0573. press star 6. i see your hand raised. okay. go ahead. you unmuted yourself. >> caller: great. hi, my name's marie sorenson. i'm calling today to paint a bigger picture of what's occurring in the cultural

district. we have five development projects happening within a two-block area with six floors and up. in a very dense area with the average building at two to three floors. issues about shadows covering gardens, yards, childrens school yards and solar panels are becoming more and more of an issue and are lowering the quality of life for children, families, and residents. some could be mitigated by design, others are more complicated. many people are coming to the mission because of the sunny warm weather and latinx culture, but that's changing every day. we need to do what we can to protect our quality of life and culture. cypress alley is known and lilac is known for the many visitors and artists from around the world who come to see our murals. the mission with 690 murals is the largest outdoor public

gallery in the country. thank you very much. >> secretary: okay. thank you. we'll now hear from fernando franchesca, please go ahead. >> good evening everyone. i live at 1032 capp street which is right next door. i'm here to support her as women. as for our property here at 1030, 32, and 32a. our unit at 32a sit another 6' to 8' below the street level on lilac avenue. so we're looking at a significant decrease in light and privacy for us. this building turns into a 36' to 38' tall building, but appears to be windows looking right into our yard and into our units. according to the approved adu plans, the outdoor deck as well that's proposed. we have some concerns about that. my time is limited. i wanted to speak this evening

in support of the appeal and also just to put on record that the residents here in our building at 1030, 1032, and 1032a have serious concerns about the property. it feels like more than an adu. we'd like to see a two-story building with no roof top deck. this feels more appropriate for the space. or we'd like to see a light evaluation study to see what impact this adu will have and maybe a 3d rendering will gage what kinds of issues we may have with privacy as well and just to see, you know, if, indeed, this building is inappropriate. >> 30 seconds. >> caller: and, yeah. that's it. thank you very much for your time. >> secretary: thank you. is there any other public comment for this item? please raise your hand. seeing none, we will move on to

rebuttal. ms. ortega, you have three minutes. >> thank you all for hearing my concerns. with respect to the permit holder and the comments given, i'm not here to, you know, i didn't know first of all, i'm considered not a first gen, the fact is i don't know how these things work and all i'm doing is trying to save my family's home. i know things were approved. however, i would like to have modifications to this unit by lowering the height of the 3-story unit, a slope roof allowing for natural light into our back yard and making changes to the window facing into our rear, into our back yard perhaps with frost windows for privacy on our end. that's all i have. thank you. >> secretary: okay.

thank you. we will now hear from the permit holder you have three minutes. >> thank you, i'll go real quick. first, i want to thank ms. tam for a very detailed report and i just wanted to make a comment just as it says no d.r.s were filed that means the opposite neighbors from 1032 also been notified did not contest and there was no d.r. from them. the privacy of both units is addressed. the existing building moved directly to both sides already and there's no additional issue with that. there's no issue with the height. i've heard and i saw the letter of calculations of 48'. that would require the 30' height of the building, the deck. then the person staying on top of the deck.

if that person will be casting any shade, that person will not stay there for long. it will be just a suicide forming of that deck. however, the deck as the plans show is a setback on the second level facing lilac as far as i understand and we also cannot argue on both ends as far as the shadow casting because if ms. ortega shows the honey bucket showing shadow from our parcel to hers, that mean the 1032 capp flows the shadow to them to the subject unit. the subject parcel cannot cast shadows on both of them. the direction will go only one way. however, as the map shows, the sun goes from east to west and

those are and it is an but this is what we have here is legal going through the process, not just showing up with the unit or pre. >> secretary: thank you. president swig has a question. please go ahead. >> president: can you address privacy, please. i'm concerned with the privacy

from the deck as it faces back towards the appellant's house and also, could you address the appellant's concern with regards to windows that face her house and just your general thoughts on that and addressing her concerns, please. >> i will be happy to. i'll start with the deck. there is a misconception flowing around the description of the project that the deck is wrap around or a roof deck. the plan clearly showses, it's the small deck on the second level facing lilac street. not facing idaho of the units. not facing back of the building. it's going towards the street. so that's as far as i can say

about the deck. and it also has the set backs from the site. so that's the deck part and now to the privacy of both units you can see on the pictures the kind of grayish blue painted building, the existing building has the windows on the second floor and i showed the pictures which i personally took from each of those windows. they already observed the back yard on one the appellants side and the back yard of 1032. those are already in plain view as much as vegetation allows. we're not touching vegetation. that will remain in protection. there's no additional exposure. i hope i addressed the

question. >> secretary: president swig. commissioner lopez, question. >> commissioner: i appreciate the picture that you shared. i'd also offer that if you have another structure from a different angle with and you take the point at the balcony faces lilac, right but presumably the windows would be facing into the adjacent properties. so suddenly, you're talking about, you know, doubling, perhaps tripling the number of, you know, high traffic within the new structure looking into those adjacent properties. so with that in mind, i'm just wondering if, you know, some of

these privacy suggestions sound expensive, the height of the structure, for example, others such as frosted windows don't sound too cumbersome, so i'd like to understand what if any of those suggestions you all have thought about incorporating? >> i would have to respond and i've heard two distinct points. one is traffic and one is privacy. right now it's an open space. anybody from any of the three units meaning the two existing units and the legally added third unit can share the same open area and see however, the

existing windows on the existing building is already up high. so the height part is addressed. now the traffic issue is actually getting reduced. right now, the common open area of the back yard is open for all occupants, and i'm not even talking about any strangers who can walk into that area and access from a security standpoint from those parcels. when it's a unit built, it's a single unit. will it be one tenant will it be the family. it will be a limited group who will access those windows. in terms of the traffic, it's actually a reduction. so it's an improvement on the privacy and security.

i also should say that the engineer is present in case you have a more specific question. >> commissioner: no. i just wanted to clarify. so you're telling us the windows because i understand the point with respect to the balcony, but the windows that will be in the adu do not look out. >> secretary: sir. please wait until you get to the microphone to speak. >> this is the one who did the planning. >> secretary: okay. thank you. >> the property line walls are both solid walls without any openings. and the windows were designed to meet the light and ventilation requirements of the

building code. so if you remove the windows, then you need to remove the rooms for which they serve. one other item that i was going to say. in terms of the open space, the open space actually is 2' larger than the planning code requirement. so in that respect, this is all in conformance. the other item i was going to reflect on is that when i had the meeting with the neighbors and with the appellant and her aunt, they didn't express any concerns with anything that was being proposed. and the first time that i heard

about that was probably three weeks ago. there was a concern. >> secretary: okay. thank you. commissioner lopez, anything further? >> commissioner: nothing further. >> secretary: thank you. you can be seated. we'll now hear from the planning department. ms. tam, anything further? no. inspector birmingham. commissionerses, this matter's submitted. commissioners, who would like to begin? >> i can take a shot at this. i'm super empathetic to people who have lived in a community for a very long time. >> secretary: i'm sorry. into the microphone. we can't hear you. >> i'm sympathetic to folks who have lived in the community for a long time and in the mission is an incredibly special and unique neighborhood. there is a lot of culture

there. there's been also a lot of change that's happened over time. >> i'm sorry, commissioner chang. i think the end point needs to be at the side of your mouth. >> commissioner: i'm really struggling with this mic thing. how about now? >> secretary: that's better. not at the side. >> okay. here. yeah. >> commissioner: no problem. here. there we go. i was just saying that i'm very sympathetic to folks who've lived in a community a long time. i think it's hard to experience change as it happens and the mission has definitely experienced a lot of change throughout, you know, the past 10 to 15 years especially. i think in this particular

instance, you know, we have a through lot. there are adjacent properties who have a condition where there are both sides where there is a structure and this project is proposing to infill a lot with more housing which is desperately needed in the community. it seems like there was careful consideration and review from the planning department. i can appreciate that additional windows and looking into the back yard can be a concern, but there aren't property line windows not that there's no peripheral vision. i think i get that point. but it seems like a reasonable proposal to have bedroom windows. so i think from what i can tell, you know, the adu was an appropriate proposal and i think that's where i sit.

i think i can appreciate the difficulty in accepting kind of change and there's obviously going to be impact to what people are used to experiencing, but that's kind of how i see this case. thank you. >> secretary: if there isn't any other discussion, then is there a motion? commissioner chang? >> commissioner: i move to deny the appeal on the basis that the permit was properly issued. >> secretary: so we have a motion from commissioner chang to deny the appeal and uphold the permit on the basis it was properly issued. on that motion, [roll call] so that motion carries 4-0 and the appeal is denied. thank you. >> madam executive director, a

. >> secretary: this is the may 18th, 2022 meeting of the board of appeals. we are on item number seven. subject property is 217 15th avenue. appearing on march 7th, 2022, alteration. in kind to remodel existing bathroom. this is permit number 2021/12/08/3982 and we will hear from ms. lui first. >> good evening. thank you members of the board and everyone else. before i present my case, i have two procedural points that i wanted to raise the first

point is my safety concerns. the second point i want to bring up is the permit holder has sold the building and to the extent he no longer has the permit, i submit he doesn't even have standing to be here. with that, i present my case. my apartment has been my home for the last 11 years. i really enjoy living there. i have no plans to move away any time soon. my last year, the permit holder bought the building from my former landlady. as a renter, i have a right to live in a safe space. the landlord has a duty to make sure that the apartment building is safe for the occupants. that means among other things that the landlord does not have a right to create fire or other safety hazards for me or any other occupants of the building

and that's what this appeal is about. i wouldn't be clear that this appeal is not about me being anti-landlord or pro-tenant. whatever a landlord wants to do with his or her property, he or she still has to obey the law. so the only relevant issue here is whether or not the permit holder's true intentions and plans comply with the law and the evidence shows that they don't. the permit holder lied about his intentions to sf planning and d.b.i. in order to get the permit issued. he claimed that he wants to convert the kitchens and two vacant units into study rooms. that is not true. he has admitted in writing that the only reason he wants to convert the kitchens is to turn them into bedrooms or sleeping rooms and the evidence of that is exhibit b attached to my brief. can you please turn on the

projector. thank you. this is an e-mail that the permit holder sent to me and my neighbor after he got the permit issued. the very first sentence of his e-mail says my intention to recon figure the kitchen is for sole purpose to convert it into sleeping quarters. [please stand by]

>> commissioner chang: >> this first picture shows the two existing rooms that look out onto the street, so as you with see, the windows open up to a public space, i.e., a street. therefore, if there's an emergency, rescue personnel such as firemen can immediately go and put a ladder up to the

window and rescue the occupants or they can go up to the roof or rescue the occupants, or worse comes to worse, the occupants can jump out of the window. what i want to show you is the existing bedrooms in the back of the building. again, the bedrooms have windows that open out into a yard, so they comply with planning code section 10.31, again, for rescue personnel to be able to get there. however, when you look at the kitchen locations, you can see where they are and why they do not comply with the building code, and i did submit exhibit a. those are a bunch of pictures of the kitchens and where they lead to, so i'm just going to show you very quickly. so this first picture shows all four kitchens facing each

other. this is inside, in the middle of the building. the second picture shows the other side. this is the apartment building on the wall next door. the third picture shows unit 1s kitchen and unit 3s kitchen. those are the vacant properties that the permit holder wanted to turn into bedrooms, and as you can see, this is completely enclosed. it does not meet the definition of court because the definition of court in a building code is it has to be unobstructed to the stye, and this picture will show you that there is a panel covering the entire roof in this area. therefore, it is not unobstructed to the side, and it does not comply with the building code. in his brief, the permit holder

accused me of not mentioning staircases. he thinks the staircases will comply with the code. it does not. they lead down to the garbage area. this is another picture of the garbage area. this door into the garbage area opens up into another hallway, and if you turnaround when you go down stairs, this leads to a storage area. no way does this lead to a yard or a court, so i only have 30 seconds left. i'm only going to say that d.b.i. issued the permits based on misrepresentation. now that the board knows what the permit holder's true intentions are, they should revoke the permits. the permit holder should not be

rewarded by d.b.i. thank you. >> clerk: thank you. we'll now hear from mr. wu. you have seven minutes, sir. >> good evening, commission, and members of the board. my name is lawrence wu. i am the owner of at 217 15 avenue. the permit was issued in my name and was sold along with the building. so to start, i want to clarify, there was a [indiscernible] on october 15 by the tenants and was not responded to me by the

[indiscernible] not to debate the use of the roof. because the conversion is deemed hazardous, then the use of the room is irrelevant. in case of fire, it will not be scrutiny or the bedroom is more prone to fire [indiscernible] as kitchen. i did not change the floor plan of the regional building. in the exhibit, i did not think we could present additional exhibits, but i wanted to show

you, it showed there's an emergency access stairway right outside the converted room. i have not changed any lay out, i have not done any work. [indiscernible] that exists to this garage, the yard, and the front door. so that plan was reviewed by all required city department. all building code has been complied because the permit was issued. now, the argument in the exhibit appellant provide is baseless. they're more interested about the use of the room, the bedroom. initially, the original plan was to convert the kitchen into

a second bedroom, but that was declined by the planning department. the reason why it was -- the electric company said the money was spent on the room, the plan, and the permit was paid, so i just went ahead and get a room. but since i no longer own the building, i will not comment on whether the current be owner will continue on the plan or the future usage of the occupant of the unit. there is no proof the room is being used. there's no evidence the room is being built or the usage is being used as a bedroom, so i don't know what we're arguing with over here.

[indiscernible] fire department did not when it was issued, so all the safety measures be met, the building floor plan, i did not change any, so the existing floor plan -- the appellant is concerned about court. well, per her exhibit, the original building, the court, it defined as an open space [indiscernible] on he three or more sides [indiscernible] which she had proven it to you on exhibit that it have three sides, it is not enclosure because the placement was placed there by the former owner of the building. it's a temporary placement to keep the weather out. it can easily be removed as

easily as it is installed. once it's removed, it is an open space, which met the definition of the court. but the room is only approved as a legal room, not as a bedroom. as i said, i no longer own the building, i would not do the intention of the current owner to use it as a room in the future. i just wonder in final, there is no violation of building code until actual violations [indiscernible] there is no violation, i don't know what we're arguing about here, so i ask the board to grant the permit as issued. thank you. >> clerk: okay. thank you. i don't see any questions, so we'll move onto the planning

department. miss tam? >> thank you. tina tam, again, with the planning department. 217 15 avenue is in the rh-2 and a 40-x height and bulk district. the property currently contains four units. all the units are generally identical and are one bedroom in configuration. constructed in 1959, the property is a potential historic resource. the permit is to modify the interior of two vacant units and to replace two windows. the appellant is the current tenant of the building. she's concerned about the relocation of the kitchen to the living area and the conversion of the kitchens into sleeping or study rooms. her primary concerns are about life and fire safety. while i understand the kitchen can't be converted into

bedrooms, the planning department did primarily focus on the exterior changes to the building, which is primarily the window replacement. however, we do have d.b.i. senior inspector mr. birmingham to answer any questions you may have about the building code. while this building is not subject to neighborhood notification, the planning department did issue a ten-day notice for this project in february 2022. at this time, the department supports the approval and issuance of this permit. >> clerk: thank you. we have a question from president swig. >> president swig: thank you. so i'm confused. everybody is coming from

completely different questions. if this building was presented to you as a design in its current configuration, would it be a legal building, a legal design? >> in terms of the density, no, because the zoning is rh-2, the family. >> president swig: right. >> and because it was built as such in the 1950s, it's considered a legal nonconforming use. >> president swig: okay. and everything else with regard to the questions of egress, ingress, etc., are those d.b.i. questions? because the appellant makes it sound like she's living in an illegal building that doesn't pass current statutes. that's my interpretation, and obviously, the permit holder says everything's kosher and

we've got no problems here. what -- where is the truth about this building? is it -- i know it's legal noncomplying. we've established that, but are there any other things that you find hazardous, concerning or anything that would be otherwise subject to an oh, my, what's going on here? >> to be clear, it's legal nonconforming. >> president swig: right. >> so from the planning code perspective, there's no issue with the planning code. -- planning code in terms of the building the way it is and the scope of the permit, which is to modify and move some things around on the interior and change out the two windows. >> president swig: and the issue of putting a kitchen in the living room and then creating another room, regardless of whether it's

going to be a study room or a bedroom, does that mean anything to you? >> not from the planning code perspective, but i understand the building code may have some provisions about what can be called a bedroom. >> president swig: okay. so my questions, i'm getting a subtle hint here that i better ask some questions of d.b.i. as opposed to yourself. thank you very much. >> clerk: thank you. we will now hear from the department of building inspection. >> hello, everybody, again. kevin birmingham. i'm with d.b.i. the main thing here is the plexiglass covering that is covering the courtyard would need to be removed, and then it meets the code. as soon as the inspector gets there, he would require them to move that, and now, it's a

legal courtyard. there is means of egress out of there. there's two means of egress out of the units as there is now, which is the rear door out of the kitchen, which is remaining. the only thing in the building code, you cannot exit out of a bedroom to egress. therefore, it would be considered an office or a study, and we would put something in the plans, saying this cannot have a door that would lock. if in some stage they use it as a bedroom, they should contact housing. housing would come and cite them for using it as a bedroom, but as far as the planning code is concerned, it's legal. we think the permit is proper

and should be issued. >> clerk: thank you. we have a question from president swig? >> president swig: so does it bother you when you read some e-mails that are very clear on the subject that the intent is, by the permit holder, was to, even though it was -- the use is exactly what you say, that in fact his intent was using it as a bedroom and the permit holder casts aside rather cavalierly, it doesn't matter what this room is going to be used for, i think almost a direct quote. but it does matter, and how is -- how do you feel with that? he writes in an e-mail, it's going to be used as a bedroom, and yet in representing it to you all, or you representing it to him, this can't be a

bedroom. so how do you -- other than not putting a lock on the door, big deal, when does a duck become a goose when it's really a duck? >> i guess at that point when the housing inspector comes in and says it's a duck. at that point, we can't control what they're not going to be using it as. as long as it's not specifically called a bedroom, we cannot dictate what they will specifically be using that room for, unfortunately. it's. >> president swig: so the burden becomes somebody else's burden -- that would be one of the tenants -- to file an n.o.v., and and call on d.b.i. to tell the building owner, ah, ah, ah, you're using this building room illegally, and

you better change it? that's where it goes? >> yeah. i believe a building inspector would be the one to go in and cite them for an illegal sleeping area. it wouldn't be d.b.i.s control at that point? >> president swig: yes. so your view at this point that as officially presented by the building owner, that is what you characterize a living room that's going to have a kitchen in it, a study room, and then, one bedroom, as it is represented now, it's fully legal, it's fully compliant, and there's no risk to either of the occupants that will use that facility or the other occupants who share the building? >> no.

the only concern that we have is we would make them remove the plexiglass cover on the courtyard. >> president swig: okay. thank you. >> clerk: thank you. we'll now move onto public comment. is there anyone here on public comment? i don't see anyone in the hearing room. okay. is there anyone by phone for public comment? okay. i see one hand raised. michael nolty, please go ahead. >> yeah, this is michael nolty, n-o-l-t-y. if the permit holder is expecting to do something else and expecting someone else to come along and inspect it, you're pushing the issue along. it should never have been permitted the way it's being discussed in this hearing.

the person that's asking for this hearing, they're concerned about their safety. so it seems that they're digging into what the issues are, and they're telling that things are spinning out of control in their housing, so i would just say, at this point, i would deny the permit. it was not issued correctly because of the way it's now being handled. thank you. >> clerk: thank you. is there any other public comment -- can we mute? okay. thank you. is there any other public comment? okay. i don't see any, so we'll move -- michael nolty already spoke, so he needs to lower his hand. we'll move onto rebuttal. miss lui, you have three minutes. >> thank you very much. it is shocking that the d.b.i.

would come here and represent, based on the shocking e-mail, oh, yeah, we think that the permit is fine as is. it's not fine. the whole reason i'm here is because i'm showing you the true intent of what the permit holder wants to do, and d.b.i. is just completely ignoring that. you know, i should -- as -- as the person who just testified said, the burden should not be on me to try to have to prevent a fire hazard from happening in my apartment building where i live and where other people potentially will. the burden should be on d.b.i. to listen to evidence that i've presented and say oh, yeah, we made a mistake. now that we know what the true intention of the permit holder is, that permit should never have been issued. and, you know, i wrote in my -- in my brief that the board

alternatively should limit the conversion into a study and not a bedroom u but that's not an -- a bedroom, but that's not an adequate remedy. that means that a permit owner can lie on an application and still have d.b.i. issue a permit to them. and if they're called on, if they're exposed, the permit holder will already use it for what they want it to. mr. wu already testified that he sold the property along with the permit. he already said that he lied to d.b.i. he should not be allowed to profit from a permit that has

already been issued. mr. wu deliberately changed bedroom to study room, knowing that he can circumvent the building code, and d.b.i. says oh, we're going to look at it in the same style and give him the permit any way, despite knowing all the evidence that's been presented here. and i want to say one more thing, the panel across the roof, if that were to be removed, any time there's rain, it would immediately flood the entire building. you saw where the stairs go. it would flood the entire building. it would go into the door here. that's not a viable option, to remove the panel across the door, as the d.b.i. representative said, so with that, i conclude my comment.

>> operator: that's time. >> clerk: okay. we'll conclude that comment. mr. wu, you have three minutes. >> yeah, i would say that her argument is based on an assumption on the room. there's no intention to actually factually use it as a bedroom. since i do not own the building, i will not comment any further on the usage. like the building inspector said, if the building is in fact used as a bedroom in the future, if a violation occurs, they will be cited, but before that, there is no violation. and you know, the

[indiscernible], the tenant have no problem for the last ten years. when they placed the cover, she didn't have any problem. why did she bring it now? [indiscernible] right next to the building, that [indiscernible] and she didn't -- like i said, she did not complain against the original owner for the last ten years that she occupied. why is she bringing up the issue now? thank you. >> clerk: okay. thank you. anything further from the planning department? how about d.b.i.?

>> i would like to say that the building was designed to be open to the sky. it was designed to be open. taking away the plexiglass screen, it's just going to be an open room. we can't control how they use the room. there's a means of egress out through the kitchen, through the door, and down the stairs of the building. the only thing we can do is say it's not a bedroom. we can't control what they're going to do with it in a couple of years. we have no control over what the new owner is going to do with it. we're just saying technically it's not a bedroom. >> commissioner diamond: question. >> yeah. >> commissioner diamond: should there be some condition over

the use of this room and removal of the plexiglass? >> no. as soon as the building inspector comes out for the inspection, he would say, this needs to be remove. also, on the plan, we would say you cannot lock this door. >> clerk: okay. commissioners, this matter's submitted. >> commissioner diamond: commissioners? -- >> vice president lazarus: commissioners? >> can you guys hear me? okay. i totally appreciate a desire to live in a safe place. i am failing to see how changing the configuration of the unit compromises safety because i think building

inspector birmingham is correct. you can -- there's no guarantee that people can't put fiesk bedrooms in the -- five bedrooms in the dining room even if that is the intentional living space. while the intent is not to treat it as a bedroom, people use it as a bedroom all the time. you can't necessarily control that unless you go and inspect every single unit, which may be the right thing to do. i guess the [indiscernible] i don't see how that increases a

life safety hazard. so i would make a motion to deny the appeal and uphold the issuance of the permit on the basis it was properly issued. >> vice president lazarus: any other discussion? >> president swig: i would uphold the motion by commissioner chang [indiscernible] rent is expensive. people do not have the wherewithal to pay san francisco rents, they have to stay somewhere. some sleep on the streets, and the student population is particularly vulnerable. we've seen evidence where people do break the law and turn that study room, living

room, dining room, you name it, and it gets to be a bedroom. not only for a bedroom, but a bedroom for multiple people, and it's impossible for building inspectors to keep up with that because the staffing levels are not there, and it's not their fault that they're understaffed, so it's up to the cotenant, unfortunately. the burden becomes the cotenant in the building to look out and file protests when they see abuses happening. so i support commissioner chang, and i just wanted to shed some -- it's not that we're turning our backs on this, but according to the statutes, this permit was properly issued. >> clerk: okay.

so we have a motion from commissioner chang to deny the appeal and uphold the permit on the basis that it was properly issued. on that motion -- [roll call] >> clerk: so that motion carries 4-0, and the appeal is denied. thank you. we're moving onto items 8-a and 8-b. these are appeal numbers 22-025 and 22-026, dan feldman and joshua klipp versus san francisco public works bureau of urban forestry as 695 rhode island street, appealing the issuance of a public works order, approval to remove one street tree with replacement per the detailed procedures

outlined. this is order 206-241, and since mr. feldman is not here, we will hear from joshua klipp first. mr. klipp, you have seven minutes. >> thanks. i'd like to share my screen. and you -- can you see my slide show? >> clerk: yes. >> okay. thank you. good evening, commissioners and all members of the public. i want to start out by calling out a statement in the department's brief. mr. klipp states that it is [indiscernible] to rely on the upon of mr. garbelotto. i explained that i learned about transplantation from

acting director carlo short. i learned from director short that transplanting a tree is a delicate operation, and it depends on the amount of root mass that can be preserved. if enough root mass cannot be extricated, the industry cannot stressfully transplant. no, i don't think it's irresponsible to rely on the opinion of an expert, i think it's irresponsible to rely on the opinion of someone that never saw the tree. i hope that in the future, public works does not take the opinion of experts simply because they're experts but also does the work to make sure

they have sufficient foundations. also, it's worth noting that his conclusion is, biodiversity is one of the keys to maintain the resilience of the urban forest. for this reason, gingko bilobas may not necessarily be the best selection for trees planted on our streets, yet gingkos are the vast majority of our trees. from my perspective, it seems a

little disingenuous that the city would ignore the existing mountain of evidence. this leads me to the slide in the photo, not because i love this movie, but because of what looks to me on the outside to take any effort to get this tree out of the way to build a driveway. when i look at this saga, it looks to me saying whatever it takes to get this garage installed that an automobile can have a roof over its head as soon as possible. i don't know the applicants, but what i want to point out is

the horribly flawed process that they got swept up here in san francisco. planning approved a new driveway requiring the removal of this established tree from its home because apparently the facade of the house is more than 45 years old. i'll tell you what's more than 45 years old. me, asbestos, lead pipes, and yet, planning has the wherewithal to change its codes to make sure that these harmful things are removed from the environment, except for me. i've sat here for hours now listening to how much consideration we give to things like windows, shadows, and wireless antennas. shouldn't trees be given the

same consideration? while the department has denied the request to remove some mature trees that have conflicted with garages. this board is the only place we members of the public have to go and beg you to preserve critical green infrastructure despite planning's pen chant for 45-year-old facades. having said that, in a way, i'm glad to see the say anything approach because it underscores the city ought to be doing it in the first place. why does nts planning look for ways to preserve trees, or, hold onto your hats, building driveways and garages increase

use of private transportation. private transportation is the second greatest polluter in the city of san francisco. this all means that san francisco is literally ripping out green infrastructure to add impermeable surfaces. until planning changes its ways and until this board says enough, we finally need more trees and not more garages, i'm going to keep coming here because this is not an acceptable path forward because we are only six years away from failing or climate action plan. public works seems to have no problem exempting this project

from green infrastructure. without a reliable mechanism that triggers meaningful consequences here, i respectfully request the permit be denied. thank you. >> clerk: thank you. vice president lazarus, i originally told the permit -- the determination holder and the department they had double the time since they're responding to two appeals, but since we didn't have testimony or a response from the first appellant, do we want to limit the time to seven minutes and three minutes or... >> vice president lazarus: i think the normal time would be sufficient. >> clerk: okay.

so mr. [indiscernible], can you present your response in seven minutes, considering you're only responding to one matter? >> i just wanted to mention one thing, get into the limited time that we now have, which i understand, during the discretionary review process which we mentioned earlier, the appellant, mr. feldman, never once mentioned the tree. during the community outreach when we met with neighbors, not a single tree. it wasn't until the project was approved at planning 7-0 that mr. feldman sought out a different way to try to defeat the project and then started to focus on the tree. with that, i will pass it over

to [indiscernible]. >> good evening, commissioners and mr. president. i'll go quickly since our time is running. we do have a slide, but i will give a brief synopsis. we've always planned this home to have the tree. there is a slide here. >> clerk: do you mind stating your name for the record. >> my name is mark demolanta. i'm a licensed architect in the state of california, and i've conducted my business for the last 19 years here in the city. there was never a situation where we talked about not having the tree. the gingko tree is the existing

tree, and that's why we're calling it the existing gingko tree. i guess another tree can be brought up, but we're talking about relocating the existing gingko tree. the appellant sought out to hire the u.c. professor with a very high background who has done a lot of work with the city of san francisco and for the city of san francisco, but this is not a local gardener or landscape architect, this is an individual that we obviously rely and trust his information and has written a very extensive rate plan that we don't always get in projects. i'm very happy to have that included in these projects because we don't always get that included in this caliber

of plan. lastly, i just want to say that we're consistent with all of the green plantings in san francisco and in the neighborhood and in the surrounding area. i think i used up most of my time, so i'll -- >> clerk: you have four minutes. >> i'll yield to the -- >> clerk: okay. thank you. >> [indiscernible] unfortunately amy cannot be here tonight because she's a baker and she goes to work at 3:00 a.m. we have very deep roots here in san francisco. my parents moved here in 1983, and my brothers and i went to

public schools here. amy and i actually got married here at city hall in december 2017. we bought our home in 2018. we'll also be bringing my father, who has difficulty walking right now because he had a stroke, to live with us. my brother and his family only live five blocks away, so what is before you today is whether we'll be permitted to relocate the gingko tree that is in front of the house by a few feet. i want to ensure you that my wife and i are supporters of the environment. we're not asking you to remove a tree from the city canopy. we're asking you to move an existing tree with the help of a very well respected u.c. berkeley scientist with 35

years of experience. we believe in trees and will do everything we can to ensure that the gingko tree flourishes in our new home. we want to treat the tree as if it were a part of our family. as such, we kindly and respectfully ask that please uphold the original decision granted almost seven months ago, in october 2021. on behalf of amy and my entire family, thank you for your time and consideration. >> clerk: thank you. you have 1:40. i don't know if you want to use that time or -- okay. you'll have time in rebuttal, as well. okay. we'll now hear from the department of urban forestry. mr. buck, you have seven

minutes. >> good evening, commissioners and president swig. good to see you. i just want to thank you for your service during the pandemic. it was amazing to see everybody come here. great to see everyone, and i hope that president swig, you feel better soon. with that said, i just want to say that i completely share appellant klipp's frustration. i first protested a tree proposed for removal. it was the removal of two brazilian pepper street in san francisco when i was a coordinator for friends of the urban forest. i remember where it was, i remember where i was standing. i remember the species, i remember everything about it, and i was incredulous that street trees would be removed

in favor of a garage, so i just want to say that i share that visceral experience. i know that he's not here this evening, but we did receive mr. feldman's testimony at the public works hearing, and while i did not support the request for rescheduling, mr. feldman did state that he opposed the removal of the tree, spoke at the hearing and submitted a letter. i'm not questioning his intent. i believe he wishes to prevent the removal of this tree, but during the absence of a brief from mr. feldman, today during lunch, not before the hearing, i pulled it up to see where mr. feldman lives. he was two houses uphill in a

vertical addition. no mention of a tree. i'm speaking to the public who tune in every month or so to learn more about these projects. turning more to mr. klipp's appeal, this street tree is only a three-inch dime center tree. we've had really big trees that conflict for removal, where we're losing a tree and a replantable site. in this case, it's a small tree, and there is room to plant adjacent in the same property. with that, i'm going to show some slides.

the more i prepared for the hearing, the more i was surprised, a bit shocked. this tree was planted with a permit 20 years ago, so 20 years of growth, and this is all we have to show for it. why is public works supporting the planting of this young tree? 20 years, and this is all the growth we have. i'm here to say that we will fight for trees that are an amazing asset to the community. the more images of the tree in the side. i've been to the site myself. i've reviewed the plans, i've made measurements.

there is room to plant, shift this transplanted tree anywhere from six to 8 feet downhill. i've been to the site, corroborating the measurements, and this site is replantable with the site. there is room to open it up as much as possible to be able to make that transplant successful. spacing is a challenge. we always want greater spacing, but we also have guidelines on that. the gingko tree is a large stature tree at maturity, and this tree is under power lines, so it's going to be capped physically in its height, and

ideally, we'd have more spacing between the trees, but we believe we have the bare minimum distance that we can work with. also, i wanted to point out something that was not pointed out in the existing public works decision. public works has an order that regulates the planting of street trees. our staff didn't bring this up, and it wasn't brought up at the hearing, but overthe years, having trees in conflict with proposed garages, when the trees are relatively young and can be transplanted or replaced with the same amount of trees or greater, we actually approve that, so i just wanted to bring this to your attention. public works will typically approve a removal permit application for tree removal in the following cases.

the first item is that the tree is unhealthy. the next one, if the applicant proposes to relocate the existing tree at the same property, and public works determines the transplant is likely to succeed, this is something that i think we should have had in the findings and the resulting decision. i think that would have resulted in a little more trust with the public. this isn't about conspiracy or cutting corners, this is about having a ph.d. scientist who got his degree at one of the

best urban forestry departments in the country making his decision and the work that he and people like him do for forestry. i totally agree with mr. klipp, that policy wise something needs to change. i would suggest in a few months on the work for department of sanitation and streets, you'll have a commission. that mite be a great place for us to start. it would be great if we were present at some of these discretionary reviews so we could have some of the conversation all at once. thank you. >> clerk: thank you. we have a question from president swig. >> president swig: hello. i heard the talk about moving

the tree and how it was delicate and complex. as you know, my input has been of saving as much of the canopy in san francisco as much as possible. one thing that i've heard, and i won't masquerade as an arborist, but one of the things you have to take into consideration is the root ball. how can you move this root ball without fear of losing the tree? >> in space to excavate, in this case, it's going to be moved over three to 6 feet.

large roots of the tree will be cut in order to bring this tree over. if this tree were taller or had a different center of gravity, the engineering would be a lot different. this tree is a low squat. it has a raised trunk taper and flare, so it's -- you want to -- as mr. garbelotto outlined in his report, you're going to get as much of that root mass as possible. in this particular case, again, we have a tree that i would say abnormally small for 20 years, so there are very specific guidelines on doing that. again, if i'm -- i'm not putting down east bay, but if it was bob in the east bay saying they're going to be able to do something, i'm going to ask my staff to take a closer look to see if they can do

that. but in this case, mr. garbelotto is a scientist, specifically, a molecular scientist, and he know what goes into moving the tree. that's why we put in the decision if the tree doesn't establish properly, then we'll require an exact replacement of 36-inch box tree on the property. >> president swig: so the bad news is it's a pretty underperforming tree as far as age goes, but the good news is it's an underperforming tree and it has a good chance of survival, given it will have a smaller root system. am i interpreting that correctly? >> yes, you are. >> president swig: all right. thank you. >> clerk: thank you. we are now moving onto public comment. if there's anyone here for public comment, you may raise

your hand. okay. you have two minutes, [indiscernible]. please go ahead. >> hi. can you hear me? >> clerk: yes, please go ahead. >> my name is [indiscernible], and i've lived in san francisco for more than 20 years. i'm the founder of a community garden, called the sisterhood gardens, and i'm involved in projects to make our world more sustainable and more greener. i've spoken to these property owners, and i'm calling to support their plans to remodel a fixer upper. it's a very difficult decision to choose a tree or to choose a garage, but their proposal is not to choose one or the other. their proposal is to move the tree, and as i've heard before, the tree can be moved, and if that does not survive, they are

willing to plant another one, so i am here to support their decision of moving the tree. thank you very much. >> clerk: thank you. okay. john nolty, please go ahead. >> hi. can you hear me? >> clerk: yes, go ahead. >> thank you. hi, commissioners. my concern is the tree, as stated, a gingko was one of the top 20 trees planted in san francisco, and it was underperforming, as stated by mr. -- by chris buck, and the issue is at hand here is it has possibly a small root ball, so the problem i have it how much are you going to dig up, the root ball so you can move it a couple of feet? how much of the street are you going to go into to tear up that root ball so you can move it a couple of feet?

that's the question. it's not inches, we're talking about feet of dirt that you have to take out to move it. so i'm concerned about the procedure here and the precedent that we've set in san francisco. i've heard about moving houses, but i've not heard about moving established trees to another location in hearings, so i think we're getting into sort of another precedent that's being done today, so that's why i'm glad that josh brought it up. thank you. >> clerk: thank you. is there any further public comment? i see one hand. michael nolty, go ahead. two minutes. >> yes, michael nolty,

n-o-l-t-y. nobody can deny that we have a row of canopy in this particular neighborhood, and i just hope that -- excuse me. that's not me. i just hope regardless of the [indiscernible] that's said tonight -- i don't know what's going on here. any way, the real outcome should be the fact that the tree survives and it's -- it survives and thornton thomasetti -- and it's taken care of the next three years. i haven't really heard that part, and i think that the property owner needs to understand that they're going to have to take care of the tree for the next three years

as part of this process because we're going to have to take care of it. we're in a drought, and you don't get extra points for removing trees, so how much water are you going to have to use when removing a tree? and i'm still getting feedback. i'm not sure where that's coming from. thank you. >> clerk: okay. thank you. if there's anymore public comment, raise your hand, please. okay. we'll move onto rebuttal. mr. klipp, you have three minutes. >> thank you. first, probably, the fact that it's a three-inch diameter tree doesn't surprise me because gingkos are slow growing. it should come as no surprise. it's also a major reason that public works plants them all

over the city because the slow growing nature of a gingko also minimizes their transplant cost. in all of this work and doing it in depth, i have never heard of this existing policy in even a single discussion until tonight. so if it's existed all this time, then i'm not sure why we even needed the professor to weigh-in and suggest that it be done. if it exists, why didn't the department bring it up and discuss its policy. third, it's brought up that it's awful to have these healthy trees removed for building homes and garages? why not make planning come to these hearings to defend their decision to ignore and approve

the removal of trees. why is it 2022 and planning does not consider existing trees when we're in a climate emergency? public works still has not addressed the two concerns that i mentioned in the brief, defending removing trees all over san francisco. >> clerk: rebuttal. >> let me state, the remodel is

requiring us to redo the sidewalk. [indiscernible] these are all on the -- obviously, the request with the client to make sure we get our ducks in a roe before we -- when we get the permit application together. with that being said, when they're talking about [indiscernible] get the ball as needed, and relocate it properly as outlined. so with that being said, we're not trying to shave off a little bit of the sidewalk and cut the roots just to stay within, you know, not messing up the sidewalk. that whole sidewalk will be

done, and that whole area will be done because of the nature of this project. the other thing i was going to say is the size of this project is unique because applicant, i believe, is rooted into the neighborhood with a project like this and the time is took the past four years is a devotion to the project and the property. as you know, getting a house just wherever you want it to be in the city, it's not easy, so i actually commend the client to make this proper investment and also do the project, and that's what we're going to do, just do the project completely properly like we've done with all the permits and application, so thank you. >> clerk: thank you. mr. buck, you have three minutes.

>> minimum fine for illegal removal of a street tree or significant tree is $10,000 or three times the appraised value, whichever is the greater of the two, and we've been issuing those fines for a while now. we're not losing our power. we've got a mandate to maintain all the street trees in the city and take on the responsibility. we've been doing that. we're coming up on year five, so it shows the strengthening power that public works has, and i agree that this discussion needs to keep

happening. regarding some of the very specific site-by-site examples of when we approve a gingko and when we don't, mr. klipp cited a decision around the corner from him a couple of years ago, we often cite species that have similar growth habits or patterns. if we have five different growth rates on a block, it means we're hopscotching across the city, and we'll fail to meet our mandates across the city, so it's one reason why we went with a gingko. we have a basis and a consistency on why and how we're recommending certain species. with that, i do believe that that covers just a few points i

wanted to make known. we do enforce -- we do have mechanisms, and the new changes to our code really beef up the repeated offenses, so thank you. >> clerk: thank you. commissioners, this matter's submitted. commissioners? >> president swig: i'll start. i -- i'm very sympathetic to mr. klipp's statement about while we're trying to cutback on emissions, why are we building more garages, but that's not our job here. our job here is to interpret whether a project, and that's a policy decision, mr. klipp, but i'll support you as you move forward on that pursuit, but we don't look at that here. we look at projects and are

they in compliance with statutes, and then, we move forward on them or not. in this case, what my observation is there's been a conscious and confident effort by this homeowner to enhance the neighborhood and take a blighted house, make it better, look forward to living there for a long period of time. yes, he's adding a garage. it's his choice, and it's wholly appropriate according to the statutes and has been very conscious about taking care of a tree, not trying to say oh, okay, we'll replace it with five somewhere else, but we want to remove this tree, keep it in the neighborhood, and maintain the canopy in this neighborhood. so i have no problems with this project whatsoever. i think it's been done responsibly and according to all statutes, and therefore, i

would deny the appeal; that the permit was properly issued. >> clerk: okay. we have a motion from president swig to deny the appeal on the basis it was properly issued. on that motion -- [roll call] >> clerk: okay. so that motion carries 4-0, and that appeal is denied, so that would conclude the hearing, and we are adjourned. >> vice president lazarus: thank you. >> president swig: thank you very much.

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