involved as we've noted before in terms of the board of supervisors and your staff is truly remarkable to have navigated all of this in the context of our seemingly never-ending pandemic and the stresses on the fauxeses most impacted, so thank you for your work and your team's work on all of this. we appreciate it. >> thank you very much, members of the committee. appreciate your time and attention and for moving this through the process. >> madam clerk, do we have any further business before the committee today? >> chair, that completes our business. >> all right. we are adjourned. thank you very much.

hello. sorry. hello. okay. thank you. good evening and welcome to the june first hybrid board of appeals. swig and lazarus and tina chang approximate lopez. also present is brad russy hol provide needed legal advice. the board's willing system and i'm jewelet board's execute itch director.

we'll be joined by representatives from the city departments that will present before the board this evening. kwoery teeing the zoning add administrator representing planning. matthew green reporting the department of building inspection. kirt representing san francisco public works and forestry and nikolas crawlford. the board meeting guide lines requests you turn off all phone bunkham electronics so they don't disturb. no eating or drinking in the hearing room. >> permit holders are given 7 minutes to present and 3 minutes to rebuttal. must include the comments within the periods. public who are not with the parties have up to 3 minutes to address the board and no rebuttal. time may be 2 minutes if the agenda is long or there are a lot of speakers. mr. long will give you 30 secondeds before time is up. if there is a vacancy 3 votes

for appeal or modify a permit or determination. if you have questions about rehearing the rules or schedules e mail staff at board of appeals at sfgov.org. public access are of importance to the board. sfgov.org is broadcasting and streaming this live and we have the 8 to receive comment for each item today. sfgov.org is providing closed captioning to watch on tv go to channel 78. tell be rebroadcast on fridays at 4 p.m. on chan 26. a link is on the website. public comment can be provided 1 in person. 2 via zoom. go to the website and click on the zoom link or 3 by phone. call the number and enter the web number. sf goff is broadcasting the

phone number and access instructions on the bottom of the screen from if you issue where wering to block your number dial star be 87 then the phone number. listen to public comment and dial star 9 equalling to raising you were hand so we know you want to speak. you am be brought this when it is time. dial star 6 to unmute. 2-3 minutes depending on the agenda and speakers vment alex will provide you with a warning of 30 seconds before time is up. there is a delay with live proceedings and what is broadcast on tv and the internet t. is important that people call nothing reduce the volume on tv or computers otherwise well is interference. if the payments on zoom need a disability accommodation make a request in the chat function. or e mail the board. the chat function cannot be used

to provide comment or opinions. note that we will take comment first from those members who are present in the room. now we will swear in or affirm all those who want to testify. any member may smeek pursunts to the rights under the sunshine ordinance fundament plan to testify and wish to give your testimony weight raise your hand and say, eye do. do you swear the testimony will be the truth and nothing but the truth? >> thank you. >> thank you. >> if you are a participate and not speaking put zoom on mute. item 1 is general public comment. this is an opportunity for anyone hold like to speak within the jurisdiction not on tonight's calendar. do we have anyone for general public comment. i see a hand the number in 8217. go ahead. >> good evening.

thank you this is georgia. i sent an e mail through your staff office over the weekend and today, i guess about ab upon 916 which was supposed to be heard at housing in the senate but not because there is an issue with ad u's. section that concerns me does not confer ad u it is section 65850.02 of the proposed bill. which passed and actually been around for a year. and it says not with standing other law with respect to land zoned for residential use the legislative body of a city shall not adopt or enforce an ordinance requiring a hearing as a condition of adding space for additional bedrooms or reconfiguring existing space to increase the bedroom count in the existing house or dwelling. it only said one bedroom and

then in april of 21 it was changed to bedrooms. additional bedrooms or existing space. this seems extreme this seems this would -- take away hearings every where. not just at your board or novelty just at planning. but any enforcement action or dbi director's hearing or the board of supervisors and -- historical -- projects, you know may be it has an impact on sb9 what about tenants supposed to have a hearing. it seems comprehensive and i don't know what will happen to temperature but it is there and has 2 more chances to be heard through the housing committee. i think that this is something important that the decision makers like yourself like the planning commission the planning department was not aware until it was brought up by myself and

another person last week. it seems draconian. i think it needs to be locked at and considered. because -- it is seems major. i will leave it i'm not a lawyer i will leave it to the larceny. read english i think that's what it says. i will let it g. thank you very much, take care. with well and safe. thanks. >> thank you. i did see a hand raised by it was allen? did you want to provide public comment? we had a note before am other public comment this evening. seeing none. we'll move to item 2 comments and questions. commissioners? can you put your mic on? >> now it is.

i'm out of practice this is the second time in 3 years. commissioners. any comments other than the fact we wish our great warriors of victory in the finals? okay. is there public comment on this item? raise your hand. item 3 commissioners before you for consideration the minutes of the may 18th meeting. do i hear a motion. >> commissioner lose. >> chang. >> aye. >> that carries 4-0. now move to iteming 4 this is

appeal 22-012. josh wra wa versus public works 3236, 24th street the issuance on february 10th to joseph of a public works order. approval to remove 2 trees with replacement to facilitate new construction and under ground utility. reason the forestry approved removal of trees the impacts to the root systems. 2 new pg and e voles are requires large trenching for konldz wit. parking lot will be excavated down for building foundation and root severing the applicants will be required plant 2 new trees must be gifrngo or red manipulate and he will pay for 4 trees because they are 4 short of the requirement this . is other 20660 and hear from mr.

clip first. >> thank you, can you hear me. >> yes. >> in 2019 the city proposeed remove every tree on 24th street the heart of the community from mission to potrero. the community reallied against this and the pieces of opposition was the funds raising for and hiring offer arborist and the city agreed to abide by the findings. also the funds razor happened in the middle of the pandemic in a neighborhoods that was suffered the worse impacts of covid. based on our findings the number of trees removed went from 78 to 33 and you may remember there were 2 trees being salvageable we were told that came off from the housing development it was a struggle getting them off the lsz because of push back.

upon yet de spite the nature the protest and the appeals proceedings it was 2 years ago we came with what turned out to be a successful and innovative community partnership that agreement which this board gave blessing included an opportunity to grieve the trees that had to come down. come we did. painting the new preplanted across the colors of the corridor now grace and brightin it is corridor's rights of way. and included the formation of mission verdef a group of upon 70 volunteers that water 150 trees every week and now xanltded include volunteer groups from the arc. use mission as a form of job training vment what we did in response to that raising >> 24th street was a revelation. mission celebrated the anniversary. we have not lost a single tree and in the process we formed

friendships, created community and other neighborhoods organizations and deeper connections to the trees along the corridor. fast forward to 6 months ago we learned 2 of the trees we fought to save are on the chopping block again and what is worse the city knew the trees were in jeopardy entering the partnership was based on trust in an effort to build a relationship with the department that the community grown to distrust for the efforts to take down the trees we met to talk about alternatives. explored all options and clear that we are not trying to stop this project. rather given everything i told you in the spirit moving forward together we ask for was an effectively to make sure what was lost was replaced. from an environmental and ecosystem perspective they are 2 large trees the community fund raiseed save in the pandemic and growing culture of care and

relationship to the tree woj another and the city. we came up with a proposal if the trees would be removed they be replanted using a biomaster replace am. not one tree for 1 but one inch of new tree for every one inch taken out. that way when the community out reach roars up the day the trees are taken down weeds save the city and the developer did the right thing for the community. unfortunately, this proposal was not something the developer was willing to v. in they believed they spent enough on the project and did not want to spend something optional. funding for the project and the idea come from the will impact fund required developers who want to build in neighborhoods the idea they are reinvest in the the communities. in the spirit of partner help we presented the eastern neighborhoods action committee the community largely

responsible for determining distributions of the funds. unfortunately i received feedback that the project smorns presentation or what they per received attitude during the meeting talk over committee members was a turn off they did not want anything to do with temperature i had to do damage control the experience's idea from going off the rails. we created a mem randledum of understanding between planning public works and quality row. this memo reiterates i told you a history of how we got here. planning portion of the fundses to plant 30 more in the mission and instruction on how to make this happen. i spent hours in meetings with the supervisor of the bureau of urban forestry drafting and crafting the language of the agreement and proud to say today, both the direct of planning and public works signed

this rem mannedum of understanding. i also have been told there is no guarantee this the work. my ask is simple am i would like you to enter in the record the agreement here with the caveat the project experience will agree to funds the plan in the event it does in the succeed. if the experience is unwilling in light of the history the cultural importance of the trees and the work that so many have done to do right by the heart of the city's corridor. if the experience is unwilling to make that commitment i would request the tree permit application be denied and the department support me in this request. thank you. >> thank you. we will now hear from an upon representative for the remember determination holder. welcome.

good afternoon. board. ivement to go throughout details of the project so there is context about when we have been doing and talk a bit about the mitigation members. and i think that the -- ultimately the reasons for not supporting the project it was communicates because we were asking for money to be spent in the neighborhood not at the project site that it was not what they considered it in kind protect employmented to build defense there. 24th and cap it is oddly shaped was part of the train right-of-way from san jose to downtown san francisco.

the turn of the century. the project experiences have owned the property since the 50s. in the family with the exception of the small wooden structure on the property. and in terms of this the roots of grown beyond the sidewalk in the property which is -- mentioned that the foundations will require a lot of removal. so in addition to the utility box it is a problem to find a solution to maintain the trees. the project start in the 2016 and approved in 2020. as the entitlement were grant in the 2020. after 4 years of the community and through all of the design

issues and through planning and dbi, got to a point we thought we had a buildable project and submitted for a foundation permit in 2020. informed that they would put a hold on the project because of the issues with the trees. the project includes 17 rental apartment units. combination of studios and 2 bedrooms. and -- if we did propose 5 trees and 6 trees the small detail we agreed to plant 5 based on the requirement for 20 -- feet or tree along the frontage. this issue that josh brought up we were there was a conflict and

there was no communication between left and the planning department it is unfortunate. and -- it is really where we ended up with the conflict. it is images of the sight. here is a quick graphic to show the existing 2 trees discusss and the red rectangles other utility boxes and the red stripe across the front is the foundation you see how alarm will be selected by it. planting new tree in new locations coordinated with the boxes and the u utilities we

bring up to the site. our position is when -- a lot of the infrastructure for communications wents in, it was after bart had been built on mission. they used cap street as the main backbone for the communication lines and of course the lines power of communication all go down 24th street as limp you see in the corner. of cap and 24th there is a ton of box and then all of those utilities run both to the east. the lot shape and the complex. we tried to be really sensitive to the community and designing the building -- you know we worked hard. creating something that in my

mind is a gateway to the latin cultural district. front of the building in the rendz everybodyingses has a form of the my an temple the felony registration we worked hard on picking up this idea of the mask. and we worked with 24 and agreed in the next you will see we agreed to gift facade of the building to fwor. to install a mural. that will celebrate the idea of the latin district and become a gateway vment so we will try to work with the community and design something that would provide housing. it is near bart. a great transportation hub and important to bring more housing to san francisco. the next image shoes the building and the context not white tell be painted with the

mural. working with planning early on they asked us to lower the building so wee lost the units we infenldzed build and did add a terrace at the fifth floor covered by a beret we are adding more lands scaping to the project and provide nice out door recreational area for residents and use this solar array to knock down the need for power. we were disappointed that we did not get a popular response back. i was frustrated but not said is that -- it took me months and months of not getting phone

calls not returned. not put on the agenda. we were put on the agenda >> that's your time. >> okay. >> we will now hear from bureau of urban forestry. mr. crawford. welcome. >> good evening, commissioners. thank you for having us. i'm nikolas the acting superintendents of urban forestry. i'm take happening karla's job she is our director. i became involved with. -- long after a lot of the work had been done. i worked with appellate joshua on the mlu t. is a document that takes -- the idea in an action plan. to say what we like to do if the

funds were to be sent through the process. identify cites in the neighborhood eligible for plantings. . to pick up on the question that the appellate left for me i think -- regarding if this does not happen. and they don't agree to transfer the fundses to us. then it is up to the discretion of the board of appeals if you think that this is the requirement to right in for the developer to funds this instead directly. my understanding they were not

agreeing to that initial low. that would be up to you if that is something you wanted to as a requirement of the permit. from department perspect ever that is not something that is required in the code or something like that vment so -- i don't -- personally have an as a department we don't have a position on requiring that. that would be above and beyond. if you have questions on the history of the permit or sited i will be happy to speak to that or chris is here also i will get more personal knowledge of the history of it. >> okay. >> thank you. >> you don't have questions this time we will move to public comment. is there anyone here do you have a question. >> i'm not sure if it is appropriate to ask. mr. crawford president swig has a question. il pose the question to council.

what can we do and what can't we do in the case like this? we are asked -- this is appealing the issuance of a public works order. but we are being requested to take an action that we need your guidance to let us know what the where the boundaries are. what we can and can't do and can we tell a require in this case a developer to spend the money or can we do what can we do. where are our parameters. why good evening. deputy city attorney. you are in the same position with the department. if the department lacks authority to compel the developtory pay the additional money to plant trees, the board similarly lacks authority to do that. if they come with an settle am agreement that come with the requirement they are voluntarily pay you can noeft that but can't

force them to do something above and beyond what the code requires. >> that was my clarity. when we are asked is something we cannot do, in fact. >> i don't entirely understand the proposal but it soundses like based on what public works said that it is something above the code. my understanding is that would be something that you don't have the authority to impose if that's what they are asking you. >> thank you. >> you could encourage them to follow their agreement but weep couldn't order them. >> that's the framework i was looking for. >> thank you. >> we are move to public comment. is there public comment, raise your hand. anyoneom zoom. mr. nulty. >> first it has been put in the comment there is is no video feed on the zoom or web ex for

the public. i also point out that the members of community following this -- since the beginning of the 24th street massive mass of trees that are trying to save them. and it seems like when they mitigation is trying to hold keep the tree mature trees or something equal -- the mitigation should prevail -- i think that josh has done an outstanding job of trying to go through the bureaucracy of trying to resolve the issues when they scape up and the members involved in the process and i think that something that -- developer should be more -- tested to the needs of the xhounlts. you know when he talks about

mutting a mural on the building that is part of the art's part of heavy development. saying makes it sounds good in presentation but anybody that does planning knows those other outstanding issues that any development has to deal with. i question whether or not the attorney has dealt with planning issues before or out with the community. anyway. i'm glad this is getting to an ending but -- it is puzzling how it got this far. i'm look for example a resolution this if can be made. thank you. >> thank you. >> before we continue i want to confirm with sfgov.org there is a video feed. >> i sent them a message and when you are in the arc tendsee's window well is no video feed you use another

alternative source? you can have the audio but the feed the visual i believe must be on althoughive website. you can use the upon website or tv. with your audio. >> the attendees don't see the video? >> that's what i understand. so it is available on the sfgovtv. available on their website or our website as well. i think that is sufficient for the public. we will move on to the next speaker. kendra. welcome, you have 3 minutes. >> yes. good afternoon. thank you. i would just urge first of all, i'm kendra shark a founder of mission verdi and i attended many of the meetings with web

and steve and josh. i think when we arrived at is an elegant solution to -- expanding the -- the urban forest and having trees cared for in our neighborhood. and -- i really just hope that the developer would agree to funds upon the additional trees if the mou from [inaudible] whatever reason would fall through. as josh detailed we spent time and resources to save each of the trees we were able to save on 24th street. and i feel that -- through our meetings, and through many discussion, this would be -- am a great benefit to the

community. for the removal of the 2 trees. i urge the developer to support the agreement that is we have some to. thank you >> now from john nulty. >> you have 3 minutes. mr. nulty. can you hear me? >> okay. >> anyway. so, yes. i find that the agreement that has been discussed is similar to the agreement that was done with the 24th street trees the board did approve. therefore sort of continuation of a prior decision and community out reach that was done 2 years ago with the board of appeals in dealing with the 24th street corridor of trees.

i think this is indirectly approximate the property is on 24th street and the 2 trees were on their list a continuance of the prior feeling you had and -- so -- all the trees that were taken out on -- 24th street. i think it is -- looks similar to the first agreement is they went out different money to help fund 30 new trees for the biomass for 2 are taken out for the continuing forest of 24th street. thank you. >> thank you. any further comment. raise your hand.

>> i don't see anymore comment. we move to rebuttal. mr. clip you have 3 minutes. >> i find of claire thafkz at the meetings we have regarding this development and proposed removal meetings with public works and quatroand kendz raand the tree maintenance aspects of the preservation arc chiefed. it was clear that there was no final agreement about the building facade. and how this would integrate in the community for an apartment building that most people who live in the neighborhood would not be able to afford. i bring naup because -- while eric indicated there was not an agreement. there were discussions not an agreement on that when they were clear about was theful level of

an incredible community investment. in protecting and growing its trees. and protecting that is a big apartment of this. the streets along this cultural corridor. and so -- you know we are not trying to stop development. but what we ask for is a fair remom pence toward that communities actions and investments over frankly decades as public works is aware. so -- i'm aware of what this board cannot do. you cannot force someone to do something that exceeds what law require or permit requires. i'm an attorney i get that. but the experience can agree to it and can today on this record. and agree to it because he knows it is the right thing you do given the context.

we are trying a different route and try third degree at the developer urging and -- many of us including myself have the invested time as you know getting mem ranldzum of understanding with the city is not something you can do in an afternoon. so if after all of this work from the community over all this and the community in this instance all we are asking for ask for the project experience to take ape final step and agree in front of all of us and you that in the event the mou does not. 30 seconds. >> this mou does not succeed that they will fund the plan that is set forth in that mou. it may not be required but it is the right thing to do. >> thank you. >> okay. >> i have a question from vice

president. >> you may have mentioned this before what money are we talking about? the dppt estimates the plant 30 trees would take 60 thousand dollars. >> yes. >> thank you. >> thank you. >> okay we'll hear from mr. wesback you have 3 minutes. the project has taken 6 years and cost to date for the entitlements is -- 550 thousand dollars. the experience will have to pay half a million dollars in the affordable housing key. in lieu -- and another 210 thousand dollars was eastern neighborhoods impact fees. when they are ready to break grounds it will be 1.5 million

dollars. it -- it has gotten to the point with the delay had an 18 month delay because of the tree issue started during the pandemic. in that time inflation risen and construction costs gone up spooep steeply. we are at the point there is no, you know in order to finance a project have you to go to a bank with a pro forma that makes sense and what they are asking for is you know substantial amount of money. which will increase the investment in the entitlements to date this . is a housing project in an environment we need housing and the delay and the costs that go in this entitle am the community benefits other very thing that make its so housing does not.

i'm saying i don't want to use the term, enough is enough but there has been an amount of investment already and i'm not -- you know as the representative of project experience i'm not able to enter in an agreement to -- guarantee that the funds would be available if the funds the city has promised don't come to light. hi discussion busy this with planning and rich and he assures me come time when they are discussing how to spread that money heel advocate for it to be put his tree planting program. but short of that. i don't see how the project experience has any pockets to find more money in order to

cover the expense. i think building housing in the urban context near transportation is a great benefit to the environment so we don't force housing in rural areas where we will destroy the carbon sequestration >> thank you. now the bureau of urban forestry. >> have a question. are we paying attention to the request [inaudible] i sat here for years that's the way we got. >> first time i have seen that. it is helpful. you can do that. jot person next to me was london also talking over me and the way i get to her and where is she

today. okay. this is -- you have a question. >> yea. you know where we are vment we can't force you to do anything. i think we established that with council's advice. and -- i -- i don't want who do advertisements or advocacy for any neighborhood or whatever. but i responsiblesed the very constructive work that this neighborhood has done and the way that they have approached in the most constructive collaborative fashion the development of a tree planting maintenance program. and it sets an example for every neighborhood in the city. my opinion. and -- and you are the -- your

project is the new neighbor. your -- you are the one whop is move to their neighborhood. and -- what we always like to talk about on this commission is how everybody has to get along and find a way to work together. -- and is there any you can say, no and as we heard from council we can't do anything about that. but -- i guess from my experience know -- is going to have ramifications that may make a 60 thousand dollars investment seem paltry. is there room in your world for flex believant, collaboration or

otherwise where -- we can finds a middle grounds or you can reconsider your view on the subject. because a strong neighborhood and you are the new neighbor. i would like to see your entry in the neighborhood be a friendly and constructive one. is there any room in your view. i understand sicked thousand dollars is a lot of money in the context of 1 penalty 5 million it ain't that much for a return of peace and constructive entrance in a community. do have you room or talk about a couple weeks to think about that? >> well, let me address a couple levels. first. i grew up in the mission and so did the glues and the family has

been in the neighborhood for longer than most of us have been arc live. i don't think they consider themselves new kids. and i know they vehicle working for many years and supporting activities and -- working with a community for a long time. i am not sure i see the we are not the out of town developer and corporate development company i'm a local architect making my my way and a couple of guys have been working in different things over time. and they got will older. i'm not --. able to make that decision. it takes away the leverage and

any reason for impact to use the money for tree planting. right? you can imagine a guarantee the developer will pay why should we. what is really difficult for me is that money the impact fee the amount of money that is supposed to go in the neighborhood to take care of things the neighborhood needs and the neighborhoodments trees why is this not why is it afternoon issue. may be we won't. and that's difficult for me to absorb. i don't know understand why there was push back and why this was why it took after the original presentation and

impact. to push for making sure that we and josh and his group knew that they would try to make sure the money was there. so. >> that's my i hope i answered your question. >> i appreciate your back upon ground and giving me the information the sponsors are long-term members that does not make president that -- news may not resonate in the context of the building i'm getting at here is that when we make a sdpigz stoenlt. yes or no decision. and we are trying to make the best one. and will also project being to yourself and to the appellate

and to buff. really look and see if -- are we at a dead end here? is the project were sponsor at a dead no is funding a dead no or -- if we added time to this and did not make a decision on this tonight. and i'm asking for your view on this and i will ask the same thing of is there any hope that without without our further prosperitying you could take a couple weeks and get this negotiated and get the funding sources straight? that's a question for and you will asked same of buff.

are you there. >> yes. jowl are asking that of me. >> if -- if the result you are looking for is that mou includes the commitment by the developer to pay for the tree planting the money is not provided by the city, i hope you understand that means the city will not provide the money, right. they will redirect the funds to another program and make the developer pay. it is in the really a back stop proposal. in the way i see it playing out. >> i did in the make myself clear. what i'm looking for the possibility of putting out there if you think that if we did not make a decision tonight that between and you know this is what negotiations are about. that -- that you could find a

compromised position where by you would put in some of the money and other source would in fact come to the table to prevent this collision this is about to take place and where if you are planning a yes, no, win, lose game and someone will win and someone will lose rather than a compromised game where both parties will contribute and prevent a collision. do you have space to take a step back and do you believe that the other funding source take a step back and make commitments that -- where one or the other does not pay the whole thing but a way to share the expense? if not we will move on. >> no my understanding is that the budget cycle not happen

until november and so we would not be able to and well is no guarantees until they go through the budget to sit down in a room with all of the parties that need to make the decisions. so we would not be able to we have to delay it until late fall. they would not be a couple weeks it would be months. >> and that creates a significant hardship for the developer. i understand that. >> yea. >> you know every month is a hardship. and i wanted to address this issue of -- what -- mr. nulty made the comment a couple time in other venn use that the providing the muralist is a part of public art. i don't think he understands a project of this size and scale is not required to contribute to any public art program. and that -- the issue is that

some point we sat down and came to an agreement on what we were going to do. and whether or not it got on to paper and finalized with a signature there is a commitment because the glues working for years and would not back away from what they committed to providing. and the installation of the mural will ends up being a very -- time contombing cost impactfulful schedule issue. you know you can imagine a set on 24th and then -- installed mural over number of days. it is in the a small ticket item that they have agreed to as a benefit. you know to the community. you know plus we lost units to reduce the scale of the building and impacts pro forma. so it is just -- the things that like -- i'm looking at out my

window and the people sleepoth sidewalk it is sickens me i'm will totally, i am sympathetic. >> thank you. don't mean to cut you off you are adding to your testimony. thank you very much. the mechanism is for planning line item to -- the recommend that the funding be allocate toed the bureau of urban forestrych regarding the discussion about what is enforceable and the issuing of in lieu fee system something we are doing and the limit of of what we do as a department.

i do want to say thank you to the folks that i worked with i appreciate planning upon department and work with me on that and josh -- i think my understanding from josh is he will attends the meeting and speak on behalf of this idea approximate garner support for it. and i think that this was all right our plan b or c or d. if there was not going to be direct funding by the developer the tree planting this was the alternative and -- we are willing to act on it. if it works out. >> so. same question. >> we can't -- enforce what you are asking us to do. we heard that. okay. i appreciate mr. clip knows how much i appreciate his energyos behalf of our city. he taught me a lot and has been tremendously success and will tremendous contributor to saving

our forests. my respect for his ask and current achievements are tremendous. still can't help you out. it goes yndz our jurisdiction. we are again we are stuck here. no matter how i feel. i still can't do it. what is your advice do we take a stretch back and take another breather. when i say breather i advocate a breather that would be the next time we get this agendaized we come back and talk about it. can we take a breather and can you get funds that will off set the commitment that you are asking from the developer or do we ends it here the mou your hard work special mr. clip's dedication guess out the window because we can't do anything

about temperature what i am hearing, what can we do. i'm asking, what can you do? we can't do what you are asking us to do. not possible. not legal. so -- we can stall it. for a couple weeks and see if you go back to the well and finds monfrom the sources or it is over. how do you feel? the limit of what i'm asking you to do on behalf of the department is to. support what we have put together in the mou the request is coming from appellate clip to developer to fund that in the absence of support for this. . i think that those are the -- moves and as far as what -- bus is able to do. we have done everything we can

in terms of creating it -- and the plan. >> i agree. mou is great. plan is great. everything suspect wonderful. but the saying goes not about the money it is about the money. and we cannot tax, fee, penalize the developer 60 thousand dollars because we want to. it is not legal. so -- that could happen in a side agreement that you bring to us that we can tag on to something that is that we do in here. bum we can't as beautiful and wonderful as your mou is we can't put that 60 thousand dollars price tag on the developer. it has to come delivered to us as --a an agreement we can affirm here. is that true?

>> in the past sometimes referenced an agreement jurisdiction of the board and decision recommend agsz or urging you to follow the agreement you reached but it would not be enforceable part of the decision even if they came here with an agreement. >> right. >> we say great idea. we appreciate it and we recommend you go along that path but can't will not do good unless you have a bulletoned upright before -- you know sympathetic we can't do anything. we help you more and may be if you get the funding sources. i don't know.

what do you think about can you find funds? to help the developer out asking him to get it further? we did ask if that was something the developer would support they said no when we were in the discussions. so the -- out flow of that was this documentful as far as public funds we could make available is that what? any funds. you are trying to -- if it come to us. if we spend it -- i think that the best is we are planting in the mission as part of our planting efforts and it is something that i don't think

tell be good to tailor our planting around private development. we have to plant where we need it the most. >> thank you. >> thank you. >> commissioners this matter is submitted? mr. complip again. >> good ahead. >> not to put out spot with this but -- is there an understanding that the trees are a problem. and need to be removed? i know sometimes there are arguments whether they need to go in the first place. i'm trying to clarify in my head there is a recognition and agreement that the trees are a problem. . >>. there is a recognition i believe that the trees are would

conflict with the utilities. unfortunately, you know again, that does not mean the community understands why the trees that it funds raised to save would have to go. >> right. i appreciate that. and the other question is now lost in the weeds. could you out line the who the parties are to the mou? and the jist of it? if we dom ends up encouraging it i want to be sure i understand what it is. >> the parties are quatro. head of planning has signed and carlos the acting director of public works signd and out lines what the planting plan would be. and then describes briefly the funding mechanism etch >> okay.

testimony is the n k a k money involved with the mou >> that's what we plan a. that's when we want to do. >> okay. >> i wanted clashifiy. >> thank you. >> sure. the matter is submitted. commissioners. sure. i'm not inclineed continue it i don't seat efficacy of it. and nobody likes where this is going necessarily but there is a possibility of the funding being there. and i would suggest that we to the extent it has weight at all, include something about that in our decision. but -- i personally believe we need to support the department. mr. chang. >> thanks president swig and can

you hear me? i can't hear you. you have to push the microphone. the red light is on. >> i tends to agree with vice president lazarus. i think that a continuance would not be sxufl soundses like what the department is asking of the board to support mou, which has broad agreement. across the parties. and i think that is what we should do. commissioner lopez. yea. i'm of a similar position and echo president swig's comments about -- you know -- take the point that the permit hold cert a part of the community as well. but 60 k in the context of this time project is not a ton.

one would hope the community would have as a partner and long time neighbor who would benefit from the trees, you know seat commitment to be a continue tingant back stop. november is a language time away. we appreciate well designed building cloesz to transportation and the positive impacts that has on the environment as well. if it was in a couple weeks i would being open to continuing bum given our limitation its does not make sense to stand in the way of this as much as it would be nice in an ideal world if the permit holder could you know -- find a way. i finds it hard to believe the

pro forma will break and turn red with some share of that 60 k. i would reluctantly -- support this moving forward. >> commissioner lazarus would you like to make a motion? okay. we have a motion from violent lapse rus to deny the appeal and uphold the order on the basis was proper low issued. she would like to encourage the parties signature to work toward finding a solution in follow

through with the funding aspect for the trees. not exactly what you said but the minutes will reflect. on that motion commissioner lopez. >> aye. >> commissioner chang. >> aye vment >> president swigch >> aye. >> that motion carries and the appeal is denied. we move on to item 5. this is appeal 22-031. kathy versus d. building inspection of planning approval 3627 divisidero street appealing the issuance on march 28, 22 to if an alteration permit revision to the permit. revising north siding from stucco to siding. maintenance lad and guard rail this is 2022, 03250905 we will hear from mrs. beneden first.

>> i wanted ask alex if we could pull up my slide deck vment >> talk in the mic. thank you. i'd like to advance my own slides if this is possible. we can get you set up on the laptop up there.

no audio... no audio... tell me

when you have it pulled up and shared. >> you see it up on the screen. thank you so much. to begin -- she makes false statements intended diminish my rights and neighbors affected by this project. fair and honest appeal process.

of individuals affected by the project are home ordinance next to it and others who's yards border it. in her statement she suggests i'm under the mind control of another adult this language is trough to her character. my husband has been the victim of this couple's use of foul language and use of threatening language to comnay t. is unacceptable behavior. she wanted a roof deck on her 4 story home. the fourth the backup to the 4 story roof. issues a permit this creates a nonpermitted roof deck. in my approach used base for the permit. the permit issuance -- the

project and said read what i wrote. the code work with her professional and plan check staff to see if it applied her project i did in the give prove for the guard rails. when i asked to nut in writing he said read, i did. you see from the first slide the cover the building plan. language on the front page implies a roof deck has been approved i'm asking for to this be removed. single family residential and vertical addition of roof deck. >> i'm asking for roof deck to be removed. will the owners will code 1015

mechanical equip located on the roof the need for the permit. the elevator is a hide rollick lift pushes up from the basement maintenance for this elevator is in the mechanical room on the first floor. well is a mechanical room on the first floor of the home. >> sky lights are not mechanical. you install it and it lasts for 25 years. this owner as no solar permit on file. no h vac plans. next slide, please. this is the current structure. 2 homes have solar can approximate one an emvator and no guard rails. you see that if anyone is on the 4 story roof you see in the sky lights and neighboring homeless the bedroom area creating privacy occurrence it is owner indicated guard railos top of the pairpit wall unnecessary elevation inform associate

installing the west deck system on exterior decks and roof. she plans for her new nonpermitted roof deck. i spoke with the roofing install and explained the deck system and showed me the floor samples. . >> there is the product specific used for high traffic areas a waterproof later by metal layer now that this is installed -- cut a hole with the metal and the west side of the sky light -- speaks of and logically caught in the frame thanksgiving is important it put in question the validity of the statements she is making to the planning commission. next slide. fall prevention code come from ocea the code applies to workers

to protect them from hazards the code does not apply to home organsmenting accomplice am. it provides an exception that is effective and utilized and that is an arrest anchor clip. this clip fulfills the requirement is no impedimentses. anchorage connectors are infearior to guard rail fist they were they would not have been adopted by the california building code meeting the requirements for the code. they are used in specific situations where they cannot be use third degree is a false statement. >> next slide. >> i contacted installers who work in san francisco to inform evidence based practice. next. here is what those individuals say. all will sole or stated no requirements unless you have a deck on the roof.

we use harasses preferred for construction. zero accidents using this approach. a guard rail is in the required with installation on flat roof this is strict what is she said in her rebuttal and guard rails are needed for flat roofs. >> were had the most compelling response i never seen a code guard rails for solar when installing a services system ocea requires the fall protection equipment preclude the need for guard rails they are required if the space is a roof of deck. let me check with the team. following day i see they are not required pertaining to solar. we installed a thouz around

system in san francisco and never done anything with guard rails homes of all heights and sized and no guard rails unless there was a roof deck. >> we can dot right thing saying no to guard rails and a ladder. this was denies and will be used by the owner. you tell the facts by a decking foundation has been installed on the roof. if approve third degree creates a bad precedence the protection requirement from the employer of the roofing workeror to the homeowner. that is not where it was meant to be, thank you. >> we will hear from the permit holder. you have 7 minutes. >> hi. i'm trying to figure out how to

change share my screen. take your time we will not start the clock. upon i'm the project experience for 3620 divisidero street. you know based on my response this has gone through dr in 2020 and permit appeal in 2021 now we are book doing this again.

so the neighbors no matter they will appeal every thing they can. she what she is bringing up is solar panels. this code was triggered not by the solar but the mechanical air conditioning, elevator service access that was the 2 items that triggered the building code, guard rails to provide life and safety in order for service mechanical equipment personnel to be on there she brings up the west. west coast is a 1 hour fire rated roof. reason why we go with that material is during the dr, they didn't want to have [inaudible] we had the [inaudible] which would not require any type of a roofing material. so -- dpurg the dr they asked for 1 hour fire rated roof

installed now at this point of time. if you look at the e mail we have thomas the senior building inspector in charge of the technical code. and so before i do anything i go back and forth with field inspector and planning and building to see what is required. and because we have mechanical, air conditioning and on top you add solar panels and that stuff. that code was triggered by that. and we were trying to find a way if there is anything else there is a code requiring that. this is the exception on the bottom. and -- i was strongly advised by all the of them including my attorney not to ask for exception but the exception is only granted when you are upon gabe roofs and the equip you cannot install the guard rails. so -- they are obviously -- very

concerned about the deck. used for residential decking fwu is not a lawed. you will see it state its is not allowed be used for residential and difference with the deck guard rail and maintenance guard rail. my voice. i'm sick. the deck guard rail is requiring to have am horizontal slots every 4 inches or less. maintenance guard rail has top and middle bar and that's all well is so people don't fall if they want to -- connected to it for them to work. it is flat out not required. allowed to use for residential just because the children can go under t. is not safe for residential and never be used as such it is required in order for us to service mechanical. you know they were trying to

bring update, the guard rails visible if you look here. this was taking 20 feet away from the sidewalk. you can't see the fourth floor. because it is set in 16 feet that was required. we agreed. obviously. and the house is just flat out sitting with the neighborhood character. you see it from 90 feet. which is across the street to the school. you can't go further than this. the house is in the neighborhood character. there are no issues where the guard rail that will be only 2 bars and painted which color they want. i'm happy to agree to color and provide safety requirements for to be able to service maintenance equip. if you look at the back the back as well cannot see 4 story roof. it is set in i believe you see. there is everything is just

fitting in with the neighborhood character. if you look at this, this is the house the neighboring house. you see that the fence are at the street level. they are big you see them from every where. the guard rail. will be there with the fence it is not even an issue. i would like to show here this is -- [inaudible] the entire construction what they have been doing is again they have been blocking service equipful blocking construction guys. and he has 5 feet he has parked literally right next society guys could not get out and work and we have been going on -- through this type of environment and unfortunate situation now for sick months and we are

dealing with at this time best we can. but00ue know no matter how you look at it based on the building code the guard rail is required. will not add height because the planning code the guard rail is not height tell be more and all i'm trying to do is just finish this project and provide a safe environment for the folks workoth house and continue to service the house. thank you. thank you we will have a question from president swig. i'm lost on something. the what equipment are you maintaining the elevator equipment in the basement. i don't see a plan for hvac if you tell me i will not deny you but there is no -- anything

related. what equipment are you is being protected here or what are you anticipating as far as equipment on the roof. >> air congress will be going up on the roof elvariety service access is not in the basement it is on top of the is only for not installed yet. elevator we put in the access had to be on top. and those 2 triggered maintenance guard x-ray we have a sky light. everything else but nothing else will trigger other than air conditioning and the elevator service access. i'm getings a sense is that -- your neighbor does not want a

free pass in their view of you to be able to put an upon fencing around the entire perimeter of your roof. and but i'm sure that your neighbor would be flexible to your needs if there was a plan and the fencing or the protective fencing were localized to deal with exactly the equipment that you are putting in. and so -- i'm if i'm listen to you both it is a chick sxen egg thing. you are asking for a free pass to put a -- feernlsd the periphery of the roof. to service equip of the that has

not been planned or placed or anything. and they are saying. that would be valid if there was equipment there and they probably would be less resist upon act to putting a fence if localized and directed to on a path that did what intended which was protect works when they got on the roof on a path to get directly to the equipment. this is what i'm missing here. may be they will comments on that when they come become on rebuttal. i like your comment. why is this a necessity at this point for to you have a fencing around the entire periphery when you service equipment that has not upon been cited yet. planned. or permitted yet instead of

waiting to put up and applying at the time when you than the equipment is planned sited and what the need of a fence will be to protect workers? i will share my screen i am trying to show where it was actually show cased where all the equipment is going. it is actually shown on the plans. if you look at this one i want to share my screen. you look at this you have an elevator. we don't see it. is it possible to enlarge. like to make it bigger. it is submitted in my set so there is elevator patch, there

is -- let me sigh a solar panels here. and then on the other permit there is a statement and i can pull that up as well where we are installing ac this . is rendition i pull up the original permit i show where you there is a mechanical with this. testimony is already there. we are pressing for all of those items to be installed and every step of the way i'm unable to do any work because well is something filed which is stopping me to continue with the work. let me try to pull up the full set of drawings the original one.

do you need assistance i'm looking through 55 pages of the drawings where it is stated. if we are installing air conditioning that is in the african-american permit and part of the notes. if you like to have time. it finds it you will have rebuttal and i will ask you the same request it will not take away rebuttal time and you will not have the pressure of sorting through this. what i will do when dbi gets up to talk about this. il ask them which come first the

chicken or the egg and when is the proper time to ask for protective fencing -- if need. that's. i'm telegraphing my next move and i will suggest you will not -- be placed under stress that -- you answer my question and respond and after rebuttal and we will not take your time is this okay. >> thank you. >> thank you. >> we'll hear from the planning department of the welcome. . upon good evening. commissioners. corey teeing for planning. good to see thank you evening. again this is am if you open the case divisidero a single family building.

and the permit was issued in 2021. then that permit was paled to the board. and was heard in 2021. that appeal was denied. note project proposed a roof deck when submitted that was removed during the review and the final project did not include a roof deck. building permit before you tonight was filed in match of this year after the property owner consulted with planning and dbi both on the proposed access lad and guard rails for the solar

installation in the future and the other items discussd that are proposed on the roof. the permit meets all rierms of the planning code and issued in march 28th of this year. you heard the primary issue on appeal is the concern that the work will facilitate the unauthorized roof as a deck planning does not support any unthurzed use of an officer but determined that the potential was not ground in this case for deit was code compliant and there were itemos the roof that did need access and staff informed the appellate that if such did occur referring to unauthorized roof deck. there would be the option to file cop plains with plan and department of build and take action if that did occur. that is the department's position the permit was not

issued in error. it is consistent with guideline and we request the board deny the appeal. >> thank you. >> thank you. we will hear from the department of inspection. jury room good eaching president swig and vice president lapse rus and commissioners. matthew green representing the department of building inspection. permit application is a revision. for a 2 story vertical addition of existing 2 store single family dwelling the permit was file in the 20 to and issued on march 28 issue 20 too to change the exterior from stucco to hard and i maintenance lad and guard rail to the officer. the approved plans show a guard

rail at the roof level and solar. at the roof and maintenance ladder to the roof. 2 code sections. california building code 1015 penalty 6 requires a guard for components that require service located in 10 feet of a roof. the appellate is correct guards are not required with person anchorage are installed. california building code 1011.12 requiring buildings 4 or more stories above grade have a stairway to the roof. code exception ash lighthouse access by tread device. ladder or permanent ladder. they call for a permanent maintenance ladtory access the roof. the plans so solar under a separate permit at the roof. does in the say installed later will say use solar under

separate permit. this permit tonight will not be completed until the solar is in place and approved by electric. permit under appeal was approved and issued proper low and should be upheld. thank you i'm available for questions. >> i will ask you a request which miss first the chicken or egg. should the rather than putting a rail up around the prior roof which is the objection of the neighbor. given specific low there to provide protection to corkers working on equip. should the guard rail you identified something extra anyway because you could put in the clips you could put either

one. >> for extra protection you put in the rail. should the guard rail be put in once the equipment is put in so -- you know how to protect the workers who will dot work and also therefore the defer argument that we can see that from the roof there is no need add it. >> i also can make the argument that used solar on the roof. requires services that is listed on the plans. solar would not be approved it would be electric permit. i check today the electric has not been issued yet. i can make the argument that it does show equipment on the roof. for protection. >> try to make people happy.

>> yeach >> you know. and also the issue that there is going to be an hc a few blocks away. not within 500 feet and we have not had ours going around if we had replaced on the roof, we might put it there and the same thing with if i had no [inaudible] i might have a hood on the roof. i don't have that, either. >> but -- i would still it would seem -- if i had a neighbor next door who was upset about that -- put in the effective guard rail according where the equipment is and yet we don't see the equipment on the plans other than this -- >> again. what comes first. there is no answer to that question. >> that's why. >> i would say the appellate's

concern tell be changed to a roof of deck that's not going to be allowed we will not complete it until solar is install federal they come up with a revision removing the solar and do use the roof as a roof deck file a complaint and we write it up. >> can you talk in the microphone. >> if for somehow file a revision and remove it and use it -- for roof deck purposes they can file a complaint with building inspection and investigate and there would be -- so to put the appellate at ease i don't know which way we will find. if -- as you say improper use of a deck they file a complaint. nov issued and that -- that --

all the improve ams on the roof deck that were not being used for the proper reasons that would mean -- the -- rail and the way to get up there would be removed because -- it would be illegal use. >> stairs to the officer is required. 4 stories. >> we have to -- sorry. i thought you were done. >> we have a question from vice president lazarus >> there is an alternative to using the guard rails? >> correct. >> okay. and -- next question. dot guard rails need to be where they are on the plans.

ment how much opportunity have there to use it as a roof deck. why i don't see what size roof deck they could get up there. >> and last of question. i think. the material that was referenced that was put down. do you concure that is the appropriate material for that officer. >> i have to check the proofs for details. i thought it was asphalt when i glanced this morning i can do further research. if not built according to specks they require revision to change the material. where that is not before us now this raised a flag for you. >> yes. >> thank you. we have a question from commissioner lopez.

the path for the appellate or another nature say they put up the equipment and potential maintenance. but still rolled out a beach blanket up there. and using it as a roof deck. if someone were to see that use what are the next steps what is the timing for something. how does that play out. they valid to do something to create a roof deck. building code would not address them climbing on the roof and laying a towel out. they have to put material down. we don't -- it is a fuzzy situation i agree but. to clarify. it would require the roof requires access if people go up

on the roof. if they put down roof decking material to make it hospitable. that would be an i have lalgz of the code. the triggering -- for enforce am take more than improper activity correct. you know similar example we right rooms not to be used for sleeping purposes we don't go knocking on doors to see if people are sleeping that turns on whether the doors were look. right.

>> correct. >> that's it for me. any further questions for mr. green. i have a quick one. so00 autoequipment is the guard rails 10 feet away from equipment. and -- the stair cases required to go to the roof. and in lieu of the guard rails; what would be up there just clips or -- yes, upon the protection for workers. and -- based on your review of similar building and roof decks roof -- with mechanical equipment that needs to serviced where other rails placed. >> placed 10 feet within the

edge. should be a guard rail. i seen them at the sxej in. there is no standards. i have coved sections here if you like vment >> sure. you want to put that on the over

head. possibly? sell that the section you wanted to see? okay. do you want to push the microphone forward to the next speaker. >> thank you. okay. thank you enspecter green. we'll move on to public comment. is there anyone to provide

comment. raise your hand. one person in zoom. julie. go ahead. i'm a neighbor. i was glad to hear the railing would not go up until the mechanicals are up there. people still go up there to have a party and we can complain if they put a decking down. so -- my concern is it will be used as a roof deck and concerned for the neighbors around and behind and the side. the railing will not go up until the railing goes up i have an issue. that's all i have to say. >> thank you. okay. rebuttal. have you 3 minutes

>> i think mr. swig hit the nail on the head. am i'm a believer in protecting people and saw that this code -- has options it is in the this code did not require a guard rifor fall protection of the worker. there is fall protection provide by the employer of roofers. the mechanical equipment in question has not been placed. so stating that we will place a guard rail 10 feet of the edge. prepermitting a guard rail in the 4 story creates a false roof

deck. it does. it is something i would rather in the see. i'd rather see the use of a fall clip. it is completely invisible to the eye. meets the 2019 code standards i included that in the arc upon pendic up here. if we are protecting the workers the anchor clip does the same thing and negates the idea this could ever be used as a roof deck and provides the safety for fall protection and you know the mechanical equipment can go up. if you all decide you would like to see guard rail on the property i my question to you is -- can we put a stay on the issuance of the guard rails. until the mechanical equipment is fully in place. that would provide some kwlarification on where this mechanical equipment is going. from my research and i worked at

ucsf it is what i do every day a professor. i do a lot of research. . from my research of hide drollic lift elevator like this is maintenance happens from the mechanical room in the basement of the home well is a mechanical room on the first floor. pulley elevators are on the roof. i am questioning this mechanical equipment. thank you >> 30 seconds. >> you have 30 seconds. >> i gave you the warning. . i'm really emploring to you see reason here. common sense reason. the fact that we now have a decking material that is on the roof where it was supposed to be asphalt that should be a red flag. i was trying to get in touch with mr. green. i left messages asking for him

to call me this was the questions i was going to ask is the roofing tomorrow. sections on the build plan that say roof and others that say deck. that designation with a different material based on the designation. thank you. >> thank you. >> we will hear from the permit holder you have 3 minutes. can you hear me? i think upon she is saying the clip is something that prevent people go to the roof deck or using the fourth story deck as rescue rigzal use. when you have a clip and whether you have guard rails there is no can you hear me.

if machine was going on use it no difference they can climb up. i can tell you there are 4 deckos this project and also a large backyard. it will never be used for recreational deck. it is not allowed. the guard rail does not allow it. the new permit provision we approved clearly state there is is to be locked gate and no roof access i can share my screen to show you that. so -- okay we see it. we see it. >> you see it says locked gate no roof access. this is designed to make sure the maintenance is provided a certain safety level and it is required and the folks providing

maintenance are not professional they don't have harasses. they don't have equipment. they go up on the roof and they say. it is a mawr job i don't have to look tell not be a big deal they fall and hurt themselves and huge lawsuit. it is just not safe enough. and whether you have a clip or guard rail. people can go up there the difference is the guard riis a lot safer. i'm asking this board kindsly you approve the guard rail for my safe and everyone's safety if somebody gets hurt and thisful switched to less effective system i must ask the city to take part responsible for issues that potential could occur and no reason other than the neighbor is feeling uncomfortable somebody might go up and look at the sunset even though that will not happen

there are 4 decks and no reason or requirement for anybody tolls go up there. thank you. are you finished. >> thank you. i believe were you going top respond to president swig's question from earlier. >> i am -- the plan can you show the plan the make it clear haequip will be placed where and how which obviously justifies the guard rail. or gives us ideas where the guard rail might be placed. there is i'm trying to look the 300 notes in the mechanical in it. i'm having a hard time finding this specific one i'm looking for i will be more than happy to submit it at a later time i therein is a specification in the original set of plans where the mechanical is to have install air congress at a future

time and another permit. and so -- it is fine >> that's fine >> thank you. >> we will hear from planning department. >> i had questions. i'm sorry. go ahead. >> thank you. did you look at other options beside guard rails? >> no. because when i actually reached out to plan and building staff i was asking what was needed. and so we went through several e mails i went to the counter and sent an e mail saying the guard rail is required and responded back if that's the case you cannot object i have not heard about these exceptions brought to my attention by building or technical code what so ever until the appeal was filed and once filid told to use gabe roof the guard rail cannot be

installed. gi think we have been told that -- gabel look is an option would you be willing to explore that before committing the guard rail. i would prefer not to for safety reason in this city people sue left and right. i'm really uncomfortable because your typical maintenance worker that guess up thereupon does not have harass. does not buckle up and any yours occur they fall on the neighboring roof i will be liable and i'm not comfortable with that. are you comfortable are you saying you need the guard rail before anything can be installed up there? the guard rail in order to dot waterproofing and everything is going tinldzed it is done then when the installment of air conditioning and the service and all of that is providing the

safety for the people that are working on the deck. the answer is, yes. because there is nothing for them to clip now. do you have comments about the material that you used on the roof that was not what planning thought you would use. >> yes, i do. so we are required to install fire rated. multiple product line. we chose to go with the west it is a harder material since there will be maintenance going up and down and lots of equip drug up and down it is better to install coming that is harder so there is no pentrician or punctures we don't have water like issues after the maintenance is done. when you have a soft roof if you have something going up and down it an issue with leaks. we wents and the stronger material that will last longer

for everyone's benefit and it cannot be used as a recreational deck there are 4 decks. >> thank you. >> we have an economy from commissioner chang. >> thank you. i was just going to ask if you could respond about the place am of the guard rails. is there another location for the guard rail that would allow for you to in the workers were to perform maintenance. arc side from the per mirror of the --. fourth floor? let me share my screen. another location you can place the rails arc side from the perimeter that would allow you to maintain the equipment and perform necessary service on the officer? you can look it is a mall space. by the time everything install thered is no worker it has to be

the perimeter to provide safety. answer is, no not because in any all circumstances not possible it is there is an elevator an air conditioning andifiy light. solar and literally everything is taken you know. that is another reason upon why this deck would never used for rescue ragszal there is no room for it. . >> thank you. okay. thank you. so -- nothing further. dbi? be careful. i matthew green, i like to point out that the guard riwe are talking about is not the common 1 you think with 4 inch opening these are 21 inch open happenings. for industrial use.

they are not using the roofing material called on the approved plans the building instickspecter will have a correction notice. to use the correct material. but thank you. >> another question. do you have an opinion on the irrelevant if i have safety of the guard rails versus the clip ownership whatever the other option is? i have not used clips in over 25 years but i say guard rails are a higher sense of safety. >> thank you. >> commissioner chang has a question. >> okay. >> and say the building code requires the guard rail there is an exception if you have the clips you don't need the guard rails. >> commissioner this matter submitted. >> commissioners.

we start with who? commissioner lopez and move down the line. how is that. i can. emi'm torn on this one. i think the permit was proper low issued. it is causing conattorneyation. i don't think there are visibility problems. i do believe if misused there will be ramifications i think i'm inclineed deny the appeal. i'm inclined to i'm of that view, i think.thatview,i think.d deny.

i'm inclined to i'm of that view,i think. there is the 21 inch gap question . i would not want to hang out up there with this type of you know -- railing. and its -- its -- i'm glad that the inspector green pointed out that analogy with the room that is not used as a bedroom. if you suspect the permit holder they will use it as a room right, but -- that's just the way that the code is drawn up. right. requires that additional step of making the change to clear the space i think it fits well and

its i think equally frustrating in both cases. for -- folk who is have a suspicion based on clearly the communication has not been collaborative as one would hope. and -- you would hope that -- you know if there are other options then your neighbors feel strong low about it. and -- you know we don't have the prove in front of us about the systems going up today. but at the end of the day that is the way the codes drawn up and you know what our task here is today is really limited to are the permits appropriately issued according to the code. as unsatisfying as it is --

because i think that there is room for more cooperation here. but it is also not -- our place to force that upon people if they are keeping within the count easier of what is required in the code. that has happened here. that's why i come out. >> and another thing, the permit holder was concerned about liability. that is one of the primary reasons for going this route. she got guard rails that are not deck rails and people going and up using the roof deck the roof i say there is liability issues there. >> commissioner chang. comment? thank you. i inclined to support what commissioner lopez and vice president lazarus communicated.

i think that this is unfortunately an issue of trust being broken amongst neighbors. i agree with your assess and no amount of appropriate permitting or otherwise will resolve that. and i don't think that we can resolve future suspiciones if there were resolved. in terms of the clips versus guard rails i agree this rail vs a higher perception of safety. that teem seems like a reasonable piece of equipment it put on roof to protect workers. and so, i certainly empathize with the occurrence. but i do think nathe permit was properly issued.

can i have the pieces of paper that had the -- thanks. nothere is -- where regard to the guard rail. it talked about the guard rail should -- be located within 10 feet. they'll take this room and not meant to be a bedroom and face on the plans but we know they will use it as an illegal bedroom. and -- the city authorities

said. well if they use it illegally. then somebody is going to 3 a red flag and the inspector will come out and nay will fine them or take the proper action. to stop them from using that study. as a bedroom. and that's how the process goes. which i think commissioner lopez 'point. correct? and so -- in this case. i i'm comfortable with building the guard rail first without plan that says where is the hvac when the sponsor shuffled through paper i can't find it. if i build a house i know where it is going. i will not question the integrity of the developer. i know where i will have that

officer hatch the elevator. but we can micromanage all day long. and i don't think it is worth it what tell come down to is trust and come down to they will use that roof illegal low or not. and if they use it illegal low i'm sure great faith in the neighbors and calling dbi and saying, they are using it illegally and filing a notice of violation and taking action. that is how we probably are going here. even though i understand your point and figuring out a mitigating factor. my fellow commissioners have it right. let's we are i think we have to deny the appeal. let them go long thirty-two way if they do it right we will not have to worry. if they go wrong i faith you will call dbi and say, you know -- throughout a notice of

violation. anybody want to make a motion? i will. move to deny the appeal on basis the permit was proper low issued >> motion to lopez to uphold the permit on that motion violent lazarus. >> aye >> commissioner chang. >> aye. >> president swigch >> aye. >> that carries 4-zero and appeal is denied. we are moving to item 6a and b. numbers 22-029 and 22-030. anybody need to take a break. we have been going 2 hours and i think you are ready. >> okay. let's go. >> and lucka versus the zoning add administrator. also known as sutter street. appealing issuance on 20 too to

1201 sutter letter of determination occupied by maked use with 54 dwelling units completed construction but not a certificate of foible completion. project may change from rental to ownership without planning approval. and to determine the method of pricing and sale priesz for the 8 affordable units below market rate units conversion to rental to ownership is not permitted by plans and may be approved administratively and may sell to qualified house holdses. 4 made available rank in the the lot row and the other will familiar standards prizing for ownership. qualified first time home buyers 90% of ami this is record number 2022000093. and we will hear first from

proper a cuomo. before you start the timer can i make sure my slides are up. i'm going to share my screen. is there a way you can make them larger. i will start my timer for 7 minutes. to make sure i don't okay i'm now. all right. my name is ray and i'm an appellate and i live in san francisco since 2017. i started living in the shell are system and moved sro. i rank 15 in the lottery almost 3,000 people for 3 units. had a special importancelet

neighborhood preference i live in district 3 the building is? 3. i compete with 4 applicants. i submitted over 1 huh applications for bmr housing in san francisco below market rate housing. i'm a protected class member as well. so i live in an sro. i have it pictured here of my neighbor who passed away the door was sealed off by the core nor and notice on the right side of my screen of memorial for 3 of my cotenants. dying at the same time. there is a link at the bottom here the san francisco chronicle did an investigation on the sro's. and found thap half of the tenants perish or back on the street. all of the units were set at 55%

ami. and the city and also the property owner are trying to skirt the issue. also the name was 1201 sutter and the city and building. of the whole process is the very professional. changed the strategy and held a lottery the strategy was changed. within 3 weeks they changed the transgender 2 to 3 time and 9 months later tried to turning the bmr obligation for low income housing and december 2021

there was hearing with planning doleman plastic out the back door when i started my arguments and everybody had to wait 4 showers terminate today. it was rude. all right of determination from march 22 this cut out of low income in half the city and doleman tried to argue that it is misleading. other decision because that affects how the appeal was heard deferred to zoning or not. hopeful low not. activity taking place you can't discriminate against protected class and unjustified discriminatory affect. intent does not matter.

does not matter if than i intend today matters how it looks and he did not submit proof why they nodeed convert the buildings they did noted can submit financials city plan anding taking them at their word that are is concerning we will here is an add-on craig's list i was looking for section 8 housing you see there is blatant discrimination in red and here is another document -- where it said -- accommodating low income people is more time consuming and less center in the sales process the will old every do you mean was not created by a landlord this was created by mr. corey t the zoning add administrator who. you see the discrimination is a

serious issue. here is the website you see what they are about. this sell compromise the ordinance drew up a shameless from ireland and says we have to compromise or else. if you look at the brief lines 1-3 they threaten everybody and say that you don't comp myself myself we'll remove the low income housing. they will make 55 million when they sell the condos and give 65 thousand dollars to the city to help the low income lottery winners to be educate toed apply for loans they'll not be approved on.

this is the compromise from the group the red sliver you see there is their compromise compared to what they will make on this building. this is page 3 it over turns we'll remove low. income housing from building. that's -- they filed with appeal. they did this in court their attorney would get sanctioned. information is legally improper it shoes the questionable nature of why they are changing everything so many times and dragging everybody throughout mud. this is the guy who affected everything. this is nancy pelosi's nephew. larry pelosi. a partner at pelosi the attorneys for shameless. and this guy created it all.

precedent is important ofical cal zoning law and administrative code 87.6 can't condition prove for importance likely to reside in the dwellings unless you impose it general low. does not say how this has been imposed in other areas so -- is this it is not there needs to be one of sick findings according to california plan and zoning law. the all right of determination does not make any of those findings the appellates are third party beneficiaries. the case law. they are acting like there is no contract. it was attached. >> time. >> thank you. >> property group. >> thank you. >> you have time in rebuttal. your time is up. >> thank you. >> we'll hear from mr. scott the attorney for lucka mar nela the appellate. welcome. you have 7 minutes.

thank you. i'm in for the board. i'm scott i represent lucka who we turn is appealing on behalf of correspond community number members i became involved 2 weeks ago. the briefing dead line passed i saw and denied an opportunity to mitt a brief. you are hearing from me you have not read. it is what you are hearing from me you see in the papers. we are appealing the zoning decision we feel does not take in arc counts the long history of communities interest in the project. and a troubled project that is -- as a developer that is trying to now and has in the past exploit loopholeless in the law. >> there was a deal reached after hard fought negotiations resulting in 8 units set aside.

and the embarrass developer would go. the developer agreed the 8 unit would be rented out 50% ami they are affordable units. in october of 2019 this deal was memorialized, notice will special restrictions recorded against the property. develop and city went through a process of a lottery. the response was arc mazing over 2500 people applyed rent them. that is a testimony to the demand for these unit in san francisco. among the 2500 folks were almost 400 living in the neighborhood. and the developer hit the pause button. if the developer followed through on the process they set in motion. 8 united would have been rentsd and we'll not be here today. instead. rather than a leased out

building in 2019 the neighborhood had a vac an building for 2 years. after of the hopes up of 2500 the developer pulled the rug out. they went in the city of december of 21 and said we don't want to rents it we want to sell the unit. and we want to sell them not at 55% but 90%. ami. that proposal ended up in front of zoning and seems to recognized this was a u neefk situation and tried to reach a compromise. we don't think that compromise really takes necessity. gives additional weight to the community concerns and need for affordable housing. let me explain loopholes. the dwerp proposed it in 2014. if the developer proposing it today. far more afford annual housing would be required the developer is proposing a new project opposed to what was approved by

planning a kondzo project not rental project. but trying to proceed the old rule not the new rule. first time in the city's history as far as we know the developer had the city go through a process. all the way through the lotto process. a lot of people excited getting needed and then after that process complete changed his life. the developer. the real reason we are buffer today because the developer putting on prior made to the community and the developer puts prefer over affordable housing the switch for rental to ownership without a process.

the unique nature of the project. the developer try the same "bait and switch" today there would be a planning that was not enacted at the time it guess back when this was sielthsed you fell in mr. teeing's lap. hado we want monopoly we want nothing more than for the developtory honor their commitment. should rent the 8 units to folks on the lottery list. but if the developer is bent on no rental all sales the developer should offer all of it not just 4. all of them for sale at 55% ami prices for the lottery.

hopeful low he is on your zoom and i like to turn it over so he can give you a person perspective. >> can you hear me? >> yes. . good evening. president and board member bunkham i'm lucka. [inaudible] since 2016. and -- i have been a language time [inaudible] in affordable housing advocate and i love this neighborhood for the diversity and legacy as an lbgtq neighborhood and -- i really strong low think that with a community that has significant immigrant population seniors and fixed incomes and sro's and i

want to peek to the other appeal mr. [inaudible] saying about the huge problem of. -- people not -- fixing as sufficient for helping people remain in the community for -- a lot of reasons. but the higher affordable [inaudible] level. but we need to maintain that. and -- this development was supposed to provide. 30 seconds >> the [inaudible] unit and that's not near low enough and if we can'tup hold the original commitment, i don't know like i and many others don't know when we will think of any of the

commitments to helping reaching dual income affordable housing. >> thank you. time. >> thank you. >> we'll hear from the determination i believe mr. ryan patterson is here. i'm here on behalf of the determination holdser. >> can you peek in the microphone. ryan will be speak thanksgiving evening. before we get in the technicalities of the appeal i like to preface the discussion by stating our intention remains to get them occupied quickly. we are a mall local san francisco based vender doing business in the city for 20

years. hen a long process. the building vacant for 12 months who i we worked with planning. mayor's office and homeownership sf a local san francisco based housing nonprofit to pave a path forward for the people of we understand that covid-19 was unique and that's why we are here this evening. the project was mid construction it called schedule displays turns the reallies market upside down it is financed. after discussions and consultants they determine its is not feasible. this was a decision nobody made litly we valid loved rental housing they will not allow it. market changes by covid and

delay the process and carrying costs result of a vacant building for 12 months means this will never cancel. and part of the process, and in a good faith effort to work with everybody involved we are committed to concessionos ami levels and ami pricing and committing 65 thousand dollars toward homeownership sf to assist the people with the home buyer sxejz the loan prequalifications requirements that i have to meet. we hope they will learn about other schemes available by the >> mayor:'s office the down payment scheme. thank you for your time. thank you very much. good evening president swig and commissioners ryan patterson.

and if i could have the over head on the computer. we can pause the time. over head. please. thank you very much. commissioners the property at issue here in the appeal is 54 units of new low constructed residential housing. including 8bmr units pursuant to the housing program temperature is sitting empty as you heard pending the outcome of this appeal. property owner started on the path to offer as rental bmr, most conducted i lottery included 2 pen,000 ranked applicants. no lottery winners were selected out of the applicants the

property was not rented and neither occupied and the cfc has not been issued yet. unfortunately, construction happened during covid-19. and it suffered delays severe cost over runs now lender constraintses. [pause for captioner change] thr

at the 90% so they're going above and beyond. the owner committed $65,000 to working with homeownership sf to assist watery winters with homebuyer education and loan prequalification and that's memorialized in the lod and that's subject to the error or abuse of discretion standard which is a high bar. the lod is correct and the rules were followed and the owner was not to offer units on look pieing tenants because there were no

occupying tenants. but in a good faith effort to accommodate the ranked applicant, the owners agreed to a compromise for the property as set forth in the lod. this goes beyond what is normally required. should the appeal be granted and the lod overturned, then the owner would default back to what is allowed which is that all of the bmr units could be offered at a higher ami but we're offering it at the 55% level. appellant diaiacomo said they violated discrimination laws and i think he's mistaken on the law and the facts what happened here and the

va went above and beyond the program rules and providing half of the units offered at the more affordable level and the va or the owner was required to do this in our view and the program has been complied with. to claim this is discriminatory behavior is fully merit. no discrimination laws are being violated. they're not even implicated by this program and what's happening with this particular project. to the extent that the same requirements have not been imposed on other requirements which is one of our his arguments, that's because it's not required under applicable law. this is going beyond what's required. to do more for the lottery participants than the owner has to do and certainly understand that the lottery participants including the appellant are disappointed

by this. they had hopes this would be offered for rental at the bmr level and that had to be changed to ownership for below market buyers so we understand that frustration and disappointment and that's why half of those units are being offered still at that lower affordability rate to them. there's no contract between the city and the owner as he claims therefore the applicants are not through party beneficiaries and that doesn't apply here and this is statutory and not contractual in nature. even if it were a contractor, it wouldn't be enforced because the owner would have to sign away a property right and no authorized representative has done that. addressing the other appellant's contention, first off, appellant

marinello suggest representing the lower poke representatives is not the case. the owner reach out to the neighborhood association to ask and they said no, they're not being represented by this appellant and have nothing to do with this appeal. and in fact, and hasn't taken a position on this appeal. i think this is important, there's a claim that the owner entered into an agreement with the neighborhood association to provide 55% ame rental units, part of this project and that was memorialized and reported. as you have in the declaration in your packet and owner's representative can attest to today, no such agreement existed. there were discussions about other projects and

friendly relationships, i think with the neighborhood association but there was no deal reached for this project and the nsr that's recorded and the requirements written into that nsr are based on the code requirements. it's not a community benefit agreement. it's just the code. the nsr is required by code. and we've not seen any evidence of anything beyond that and i believe that's because there isn't anything beyond that. the appellant request a new public process for approval of the project changes. that is not a requirement of this type of change from rental bmr's to ownership bmr's. that would be asking the board to change the code to say something that it did not say and did not require and that would be clearly inappropriate. the owner

has a right to make this change, the project, i think, could be characterized as being in distress at this point and this decision to change from offering rental units to ownership units is not taken lightly. this is done because of severe covid related delays, severe cost increases and now running into issues with their lenders. they're trying to make this project viable and have done this out of necessity. this is not a loophole to address mr. (indiscernible) last contention, this is going for rent to for sale units, according to the program that was in place. that's normal operation of the law following what's required by the law. lastly, i do want to note that this project has received neighborhood support. the owner

has received a number of letters of support from community members including this one from a representative of u.c. hastings writes, quote, in my capacity as chief financial officer of hastings law, i have worked with the property development group for many years as a long time neighbor and acquaintance of the project sponsor. having known them and worked with them on multiple occasions over 15 years, my experience with the project sponsor demonstrated their reliability and honesty. u.c. hastings has a 55 unit student housing unit adjacent to their property at 277 golden gate. it's an inherit part of the process and we have worked with the project sponsor and followed through on neighbor and neighborhood commitment. they've always worked to the best of their ability to find compromise. we can request that the zoning administrators letter of determination be uphelded.

there's letters from three tenants who opposed the appeals. and here is a letter for ismeal of the mask mosque. >> 30 seconds. >> there's units sitting here vacant due to this lengthy process. we request denial of the appeal. thank you very much for your time and hopefully we can find a resolution here. >> thank you. we have a couple of questions first from vice-president lazarus and then president swig. >> when was the decision made to try to get to ownership verses rental? >> that was -- >> would you please speak into

the microphone if you're going to speak. use the middle one. >> i don't have the exact date but i can find that. but that was whenever we filed the appropriate applications, i guess or made the city aware of our intention. >> can you give me a ball park? >> it would probably have been some time in 2020, late 2020. >> okay. there's a series of e-mails that nova whoever that is sent out to perspective tenants saying due to covid-19, it caused a delay to occupy the units and there's almost one a month for the entire year 2021. so there was never an intention during 2021 to rent the units and you had made the decision you were going to convert -- >> it's was being considered. a lot of fluctuations happened in the past year and a half to two years so things were taken into consideration. i don't have an exact date but that's my ball park estimate. >> you struggle these people

along during the entire '21. >> i don't believe that was correct. that wasn't the intention string people along. as soon as we had a decision, we have been working with the mayor of the department of housing and trying to find a path forward on how this would work so until we had that, we didn't communicate what that would be because as you know, we're here today because a decision is -- >> can you tell me how you came up with $65,000? >> that was a negotiation we had between homeownership about sff and what the services would look like to assist these people. >> okay. thank you. thank you. >> while we're on the subject the dates, what was the date of the hearing as the appellant alleges that they went to a hearing and then they sat around all night and then they found

out that your client had abandoned ship and didn't plan to appear and withdrawn, what date that was is this >> he's referring to december 2021, i believe. it was actually, we had put in a request to continue and we had a request to withdraw on the day but the commission decided to discuss it anyway and gave the people the ability for push comment. >> so it was late '21 >> yes, i believe so, i can confirm the date. >> on the issue of discrimination and i have to control myself, i sat for 7 years, maybe it was longer, it seemed like a century on the redevelopment agency and the public beat into me some good sense. and some really good information. and the public taught me about the discrimination between those who can rent and those who can buy.

and it became very clear to me that in fact there was discrimination between those who can rent and those who can buy. those who can buy can come up with money to put down a down payment. those who can buy have a financial statement that supports a lender's intention to loan them the money where a renter, they only come up with that first and last and that's how they get in. and there's no way that they can come up with a down payment. there's no way they have the financial statement to support a lender's intent to loan them money. so, i don't understand, i take it as, sorry, ryan, you're a good lawyer, but sometimes i don't agree with you. the issue of discrimination here is really if i can point it out to you and

then you can comment, there's a discrimination, i believe, between renters who can put together a first and last and especially renters who are in low-income situations and first time home buyers who are also low-income who are having the great opportunity of buying their first house, but there is a discrimination between those two classes and don't -- how can you not see that point of discrimination that the appellant brings out between discriminating against people who are given the opportunity of renting a home at a low-income and actually getting a great place to live or a place to live, let's start with a place to live and a far luckier group who actually had a down payment

and because of their economic status had the benefit, thankfully, of being able to be that first time owner. how can you -- how can you see that there was no, there's no discrimination there, please? >> sure. your point is well taken, commissioner. and this is an issue that's near and dear to my own heart having done litigation for the benefit of the renters on that side of the equation. there is a difference between the rules that apply for rental units and for ownership units and the finances that have to be mustarded to be able to qualify for one verses the other. there's a difference there. and respectfully when i say that the nondiscrimination, entity discrimination laws are not implemented by this project decision that's being appealed, i mean in a technical sense, the law itself is not implicated.

there's no violation of law there. but your point is well taken that we are talking about, in most cases, a different set of people being able to afford one program verses the other and i'm certainly sympathetic to that and i think the owners are as well and that's in large part why they agreed to hold down the affordability levels to make it more affordable for half of the unit. >> now, as -- as i reviewed and thank you and i wanted to make that point that i'd see discrimination between two classes and i've been taught that, again, i sat on an -- i sat on an end seat and i was taught that by the public and the other piece of it, i had a sense that although you

positioned the developer by changing the materials and putting out there a lower ami and all that stuff, but the units got funky. they aren't the same units, can you explain that? the size of the units got smaller. they were -- it's not -- what was going to be -- my point is, what was going to be rented as low-income housing to benefit and take care of that requirement, then when it converted to a condominium situation, the and you can help me here because i don't know the answer, the gross square foot am of those units somehow shrunk or they were less attractive. there were significant compromise, it seemed being asked of those folks who are going to benefit from the developers belligerent nifb lens of lowering the access. >> i believe the change that you're referring to,

commissioner, is the change from studio rental units to one bedroom units so correct me if i'm wrong, i don't think there's a change in the square footage, whether they qualify as having a bedroom or not. and what we have seen in recent, one, two years or so is a difference in the city's public policy pushing from our family size units as opposed to not pushing for studio units, and so this -- i believe it's the change that you're referring to but it's not degrading the units. >> and with that change, there were -- there are net less units, i think, that's what it was, they're actually net less units that are now being characterized as affordable. >> no, there's no change in unit accounts. the accounts are square footage.

>> okay, thank you. thank yo -- >> thank you. >> we'll hear from the planning department. mr. tiki, you have 14 minutes. >> thank you. i just plugged in. good evening, president swig, members of the commission. again, corey tig from the planning department. and as the zoning administrator of the city and county of san francisco, in the interest of time, i won't repeat the project history and details which there is a lot but the letter was very detailed and my brief that was submitted last week touched on the most relevant points in response to the appeals. my goal tonight is to focus even further just on the key aspects of this situation and then allow the board to ask questions as you see fit. as you are aware, the issue before you tonight is not the approval or denial of the

overall project but decide if i as the zoning administrator add hered or abused in my discretion in making the determination in question on how the project must provide affordable housing in this unusual situation. as noted in the letter and my brief, this type of determine information is not a typical occurrence but necessary here especially because we were presented with a very unusual scenario that required a technical solution. before i go into those details, i do want to take a moment and give a huge thank you to the staff at planning and the mayor's office and housing and development that had too much thought. it's my job to interpret the planning code but no person can be an expert on the code and affordable housing program is a wonder of thing and results in a lot of great housing outcomes but it's complicated and it gotten more complicated over the last five years or so. so while this

determine information and other such cause are my decision to make at the end, it's definitely a city team effort to evaluate and analyze these situations, so again, i especially want to thank kate connor and carley grove at the planning department and aaliya gage at ocd for their hard work on this and other affordable housing cases and the work is done behind the scenes and i want to make sure the credit is given out there. moving on, it's important to note that for many reasons, the planning department and most cities discourage projects from changing their housing. they do have that option under the law and i'll leave it to the project sponsor to provide their rationale for the switch. in the past, that process of a project changing its housing prevision was administrative and may require a letter of determination to finalize the requirements but the code was amended several years ago to require planning commission approval for a project to provide less onsite affordable

housing than originally approved but in this case, there's no reduction of on site affordable unitys and the project will provide 8 units at 14.5% which has always been the requirement. in the past year, the tenure, so ownership verses rental was not as a factor as today and changing tenure did not require planning commission approval. however, the code was amened in 2017 to account for tenure and the code was further amended recently at the end of 2021 to require such changes of tenure to be approved by the planning commission by findings and at this point, i want to make a small correction to my brief that was submitted where i said this project was not subject to such planning commission approval because the site was submitted and the reason this project is not subject to that planning commission approval is because this project filed sb330 prior to the new controls which

locked in the controls that were in place at the time of the application that was before the new ordinance that requires the planning commission approval. the city recognizes the changes with the late switches and created a more discretionary policy base review of that through the planning commission but this project is not subject to that. regarding details of my determination, it's important to understand why this case is unique and what the outcomes would have been otherwise. if the project sponsor elected to change from rental to ownership prior to the lottery being completed and the eight unit whose have been changed and lottery run offered for 8% ami. if they converted it to ownership after the units were occupied, they would have to give a year's notice to tenant and offer to sell each unit to

each tenant or 55% up to a maximum of 120% ami. any unit not purchased by the tenant would be subject to a new lottery at the new 90% unit and the units will be sold and the opener ship and -- the unique situation in this case is the lottery was run for rental units at 55% of ami but then never awarded to any lottery winners or occupied. the applicable previsions for this project foresee and address tenure change prior to lottery after occupancy but do not address it at this awkward midpoint and the goal of my determine information was to find a middle ground that respected the fact that the lottery had been run and also acknowledging a future conversion could have displaced renters and resulted in units being sold as various ami's up to 120%. as such, i landed on a requirement that split the baby by requiring half of the affordable units be made

available to sell to the households ranked in the lottery at the 55% ami level while requiring the other half to follow the standard pricing for ownership and be sold to qualified first time home buyerses at the 9 0 /* /* -- at the 90%. it wasn't a policy based decision. it was a technical call necessary to be made to implement a switch of tenure permitted by the code. i understand that not everyone agrees, agrees this outcome is the preferred one and i'm sympathetic to the appellant situation. however, it's my belief this is a reasonable outcome given the unique situation and it will bring the affordable unit s line as soon as possible and i did not air or abuse my error. the department request that the board deny the appeals and uphold the determinations and i'm joined tonight by aaliya gage through

zoom and she's here to assist with any questions related to the lottery and leasing process for affordable units that most c and c handle outside of the planning department and that concludes my presentation and i'm available for questions. >> thank you, president swig has a question. is your microphone on, president swig? >> thank you. i read through the brief and immediately what serviced for me is why is there a planning department, sorry, why is there a planning commission because planning commission went through a whole public process, public, got a fair shot, a decision was made and they moved forward and moved down the line and just because a developer was going broke, is that -- can they punch a ticket that says okay, we're throwing out the entire planning commission process because we're going broke and we're going to

change the rules and also we raise the expectations of the public that they were going to get affordable rental units and but we're going to throw them out, too and so the whole public process thing was con team -- comteamnated and abused and undermine. that was my read on that. tell me why my read is wrong? i'm not picking on you because i'm going to take it to another question. >> sure. >> i can't respond to your subjective reaction to the situation. what i can tell you is that the affordable housing program we have has options and developers get to pick what those options are, which one they want to select whether it's onsite, offsite or some combination of those. and over the years, the code and our

policies have been amended as to when and what details are required to be provided for projects before the planning commission approves them. that isn't to say the planning commission can dictate how a project meets housing requirement but it's known upfront. similarly, the code, over time, has had different previsions as to when projects get approved by a planning commission, must come back if they change for a variety of reasons and not just affordable housing and in the past, it has really been only if you were violating your conditions of approval or if you were going to, if it was going to result in a reduction of affordable housing on -- housing units onsite. for example, if they wanted to go from eight onsite units to paying the fee which is the application that was referenced that went to the commission and that's abandoned to keep it here but it would have required planning commission approval to do that and in the past, switching

tenure did not require planning commission, right. it did not require public process. it required a zoning administrator letter of determination just to again, make the technical document and the technical switch. and then that recently changed. the planning commission and the board decided that it was good policy that if people are going to change the tenure that that needs to go back to the planning commission so i mean i think there's an evolution in policy as the affordable housing program has gotten more complicated and focused on more details like tenure and the issues have come up and addressed and there's a lag and obviously, that requirement now applies to projects going forward. it does not apply to this project and we had other projects in the past that switched tenure or affordability housing methods after approval. >> so, is this a timing issue --

this is a timing issue, so if what happened happened last week and due to new legislation, it would go back to the planning commission? >> less about when it happened but the timeline. that's the bigger question. in this case, this project had an sb33 application on file which locks their control and amber at that time and any new laws passed after that aren't going to apply. but generally speaking going forward, you no, most projects, if they were to propose this going forward, you're generally speaking, it would trigger that requirement and have to go back to the planning commission to have that tenure switch approved. >> now, i think you're going to agree with the following, my following questions, it's not

really good to have an empty building that's 90% finished sitting unoccupied in a housing crisis, would that be true? >> sure. i mean, as i've mentioned, we discourage late stage switches as much as possible because the delays -- >> i'm speaking in general. >> absolutely, in general. >> secondly, is it the priority of san francisco to get as many people in housing and comfortable off trees and available in afford -- off streets and in affordable housing as much as possible, is that and paraphrasing of the policy? >> uh-huh. >> i understand, i want to be, say, i'm very sympathetic to the sense of urgency to get this project moving away from being blighted because it goes broke and somebody -- where i have the

problem, have you considered this as an option? where i have the problem is, again, the discrimination of the two classes that i brought up to mr. paterson. that's the class that can afford to rent barely because of low-income and the class that can, it would be their dream to own something and because we have structure like this, they have their shot but they have to have a corpus and a financial saving. has there ever been, in a switch situation, the consideration that the bmr units stay as rental units while the remaining market units go to a condominium structure to the hoa

because condos, everybody owns the building, right, where the hoa owns the rental units but they stay as rental units so still the people who went through the lottery system, still the people who had their ambitions raised that they were going to get housing in a brand-new building, those wishes and dreams are not dashed? is that structure legal, possible, or was it considered in this case where those units would have been carved out as rental units, owned by the condominium owners and they can own their condos? this is your cake and eat it too, but i don't know what your thoughts are as a planner or the legal issues are. >> sure. and i'll -- it's a lot to unpack but i'll try. the short answer is yes. there's

projects in the past that one or two rent the bmr's and new ownership for the others or vice versa and have that kind of split and that was extremely problematic. and for a lot of reasons and i wasn't get into all the details and such the planning code was amended where you have to be 50% over -- to be ownership, you have to be 51% ownership. you can't have a situation now where in this case, it's 14.5% rental and the rest -- the rest ownership because it doesn't generally permit that now because it has shown to be problematic in the past so that's where it's a challenge with that situation now. if these units were going to remain rental, then enough market rate units would need to stay rental for this to be a rental building overall and outside of that, the regulatory

aspects of that, that may get into other issues for the property owners and their financing and how they're thinking about the project financially and what they can and can't do. if it's something that has happened in the past, it's something we discourage because we've gone through the challenges with that and now the code essentially, won't allow you to do it quite like that. >> i bring it up because again, on the discrimination issue, for me, those renters were -- i could see their claim of discrimination because they're out of business now because they're not going to be able to come up with the down on a below market rate condo opportunity. they're out. they're finished, they're done but i'm wondering how you have your cake and eat it to and whether it was done and considered and you can answer my question. >> i mean, just to answer that a little bit, i'm not an expert on

the city's kind of back-end programs and process of occupying and selling affordable units, my understanding is that the down payment for the units for sale is 3% and there's an assistance program through the city that would cover that for most qualified folks. i think there is assistance there and under this determination, half the units would be offered for sale but at the lower 55% ami level so it is still something we would consider a valid ownership opportunity and given to the people who ranked on the lottery for rental to give them that opportunity if possible. >> thank you. >> sure. >> okay. thank you; so we will -- >> anybody else have questions? >> okay. yes, i'm sorry. commissioner lopez? >> otherwise known as gus, yeah. thank you for the brief and all

your words this evening. i'd like to understand and appreciating the difficulty of, i think, the task that was put before you here, but the way that i understand it, you know, you're kind of going back and addressing this gap that existed under the laws that stood prior to the legislative changes the last five plus years, right, so you had basically a situation where pre-lottery, if you're going to make changes relatively light process. post occupancy, much heavier process, right. obviously, it's the reason why someone may be kick out of their home and that's why there's an interest that made its way into the legislative voice of the

people through our local ledge -- legislature to say hey guys, once you have moved in, we need to add some more process but in this bubble period that existed at the time, i guess my question is to you and to borrow the phrase that you've used, you split the baby but i'd like to hear what the -- does this feel like more like the pre-lottery impact of these people or does it feel like a post occupancy impact of people lives or do you see it as a complete toss up and that's kind of what led itself to this outcome in your brief? >> sure. thank you for the question. i think it's more the latter. you know, pre-lottery, there's no lottery run, so there may have been a general desire by some people in the community for the units to be rental.

there's no lottery run or? people ranked and have an opportunity to get a rental unit in that building. post lottery like you said, there's a lot of difference to those existing tenants and you have to give them a year's notice so they have time to build up the means to purchase the unit, the purchase rate is lower, so they get that first right. but of course, if they're not interested in ownership or can't qualify for that, then they're going to be displaced and the units will sell and the owner bmr unit. so i felt like this was something that was unique and in the middle because the lottery had been run, even though no winners had been selected, right. so there hadn't been anyone selected for the units but the lottery was run and the ranking was created and obviously you can tell from the

appellant's. there is a level of, that's different than pre-lottery. it's not the same level as post lottery. but it is pre-lottery. so, that's where it did feel like something that was just generally in between. and that's where it felt like there needed to be some accommodation for the fact that a lottery was run but there needs to be accommodation for the fact, if this went forward -- forward as rental, they can go into day one that they can purchase or leave which is not ideal either, so it was a technical attempt to land down the middle there. and i appreciate the respectful comments towards me and take in other policy and community concerns but that wasn't this process and these types of letters of determination were never intended to be that type of process. that process can

happen at the planning commission but the way the code has been amended but this was not that type of process. that's not really what i do in these situations. it really is more of a technical, how do we implement this in a way that makes sense based on the code we have. >> that's it for me, thanks. >> thank you. anything further, president swig? no. okay. >> thank you. >> thank you. we will move on to public comment. and anyone here for public comment, raise your hand. we have someone present. please approach the podium and after you speak, fill out a speaker card. >> my name is josh god win and i live a block away. the reason the low (indiscernible) neighbors did not take a position on this, part of our board members are an architecture firm and they work on the alley way project and the beautification project that includes the alley way a lot sut

sore it's a conflict of interest, so we did not have a former vote on whether or not we were going to go forward with supporting or denying this. this is a location that is one block away from the new cpmc hospital, so the idea that they will not be able to make whatever money they need to doesn't make any sense. there's both a huge hospital and a medical building as part of that campus. this is an area now where you can demand whatever rent you would like and get it. this is a part of the van ness corridor. have i lived in my building for -- i have lived in my building for 30 years and i do a lot of tenant -- avenue can the see and i can do that because i'm in a rent control building for 30 years. the tenants have gone through a process, we feel like part of what the president was saying about the determination square

footage, my understanding from someone is that they took studios and they put a wall into those studios so that they could see them as one bedrooms but in fact they are studios, the square footage. i don't know if that makes a difference. i have a client that's one of the louky people who was -- the lucky people in a rent control to be bought and turned into condos and he sued and they put him in a motel and he's in a building that's with rent control. it's a possibility. i'm looking at this, saying these people will not have trouble penciling out if they lose a building, there's no way of blight and it's a block to block building and it will be bought instantly. their ability to make money whether it's a condo or apartment is

extraordinary for where they are and corridor and buses, they're set up. i'm looking at this saying -- >> 30 seconds. >> what we need most is affordable housing and what the city is lacking before tens of thousands is affordable housing and they are implementing affordable housing. so i would respectfully ask that you grant the appeal and we get as much affordable housing for the people who need it most. thank you so much. >> okay. thank you. we will now hear from marianne sullivan, please go ahead. >> hi. i'm just a neighbor at 1001 frank lin street and i have -- franklin street and i have in the past been in contact with the property people regarding other project. they have always been honorable and they always followed through with their

commitment and i think it is better to activate this project than have occupied units, so i request that you uphold the zoning administration letter of determination as it currently stands today. thank you. >> thank you. we will now hear from sf sunny. please go -- please go ahead. >> hi. can you -- >> yes. >> i'm sunny. i'm actually representing supervisor peskins district 3 and where this project resides and he did submit a letter to you all earlier today which i hope you were in receipt of outlining his concerns with, not just this process but really the impact on the neighborhood and neighborhood that has a very specific history of fighting for affordable housing and you know, certainly under the inclusionary standards of today, this

developer would be required to do more than eight units which is over 2,500 people have basically fought to get access to. and i think that, and i understand the previous speakers concerns that hey, let's get this over with. let's just activate this. it's not the city's, i mean, unless it's the city's fault but i don't think it's the city's fault and i think it's the developers site and they did a lottery and marketed it to the community and told the community after signing an agreement with neighbors back in 2017 and this is -- they let it sit vacant for a year and a half. and i think that is unacceptable at a time when both planning and the mayor's office housing and community development and frankly both told me in our office off the record they had real concerns about the way that this

developer had conducted themselves in this process and you know, now we are telling these people we require to jump through all these hoops that sorry guys, you know what, go and try and find something at this area median level and something you qualify for? where else. over three hundred households and this is public knowledge and lottery information available. applied with neighborhood processes. these are my -- this is supervisor peskins con -- con stick wents and the city has -- constituents and the city has to honor those processes in place and then say, run through this maze and maybe then, maybe you'll get one of eight units, eight units, you know, affordable housing. i mean, unless we're going to ply rent control to everything, any --

apply rent control to any construction, we have to stand up for our inclusionary housing. we have to hold them to. this wouldn't have plied if this was a non-- this wouldn't have applied if it was a nonprofit. we couldn't get it before john stuart and bridge housing marketed the units. >> thank you. >> thank you. we will now hear from michael nolty. please go ahead. >> uh, yes. i'm a neighbor of polk neighborhood. i have lived in the neighborhood and asked and i think when a developer comes into a neighborhood they talk and they want to sell their, what they're doing and

they want to say hey, we're going to do something are the community and you know, in this case, same thing happened. they make commitments to the community. they make commitments to the established north polk neighbors and not everybody is at the meeting so a lot of polk are members but they're there as members of the public trying to hear what's going on in their community. and when a developer comes in and makes the commitments they expect that's going to happen and there's a community process of the planning code and the planning commission listens to what's being proposed and now everything seems to be (indiscernible) because the developer wants to get more funds out of this project to pay

his bills. i would suggest that the eight units be given to the eight people at the top of the list if they still want this because obviously this has been a year, over a year of them on hold and whether or not they still want them or other people -- another additional people that are on the waiting list, whether it's the ninth person or the tenth person but they precall tied to be on the waiting list -- pre qualified to being on the waiting list and i don't know how much they would have to come up with. i haven't heard a price of what the property would be or what these sold for and if the rent is that way because you know, renters don't have disposable income.

they're on fixed income or there's a reason why they choose to be a part of a bmr program so they can afford it. >> 30 seconds. >> it's fixed at 30% of your income. so, i think you should go on the side of the appellant's, thank you. >> thank you. we'll hear from peter galota. peter, please go ahead. >> thank you, good evening, commissioners. peter, resident of district 3. and a 13 year renter in san francisco and i live a few blocks away from this housing development and i walk by this building countless times and it is frustrating it learn it has been sitting vacant for years as we face a housing crisis in san francisco and it's more frustrating to know the

developer is walking away from its original proposal for bmr units which is what the community supported and the community was promised and what was approved at the planning commission and i have to say as a long time renter in san francisco, it's frustrating that we have to continue to fight over crumbs in this city when it comes to affordable housing. four units out of 54, we're supposed to take as a victory. president, i agree with your comment regarding discriminatory. a lottery was run and tenure were occurred and those waiting for housing are still waiting. meanwhile, developers continue to make profit even during the covid-19 pandemic and i think we have to decode the not penciling out rhetoric we keep hear from developers. a project built has pencil. it's viable. it means the rate of return on investment may not be as fast enough given the recovery of the economy but

we're told they're not viable and what that means to me is the developer just isn't making as much profit and the keywords are as much. when you change a studio to a one bedroom without changing square footage, you can increase the sell price of the unit and this is how you extract more money for more profit and it's not about families and families can't live in one bedrooms so this is about money. this isn't a unique situation and it's happening in new projects that haven't been built in other neighbors even here in san francisco where developers say they can't do what they said they were going to do because it won't pencil so i think we need better process. i think we need to draw attention to the bait and switch. we need to do more than discouraging it, we need to stop it. uphold this appeal and

decide so we can ensure this situation doesn't happen again. thank you. >> thank you. is there any further comment this item on these items, please raise your hand. seeing none, moving on to rebuttal and we'll hear from mr. como first, you have three minutes. >> before you start the clock, i wanted to make sure my screen is properly shared here. >> sure. >> can you see my slide here >> yes, i'll turn it over -- >> sure, sure. i'm going to make it bigger for you, too. so, chairman swig was talking about alternative solutions and there's actually, there's laws that mandate the city of san

francisco must explore alternative solutions so that's the federal fair housing act as well and san francisco administrative code 887, so things like offering rental units when other units are condos are subleasing and subzoned and this is something the city must look at and these are reasonable accommodations, so there are laws and mr. t was saying it was complicated and there was certain san francisco bay laws, local laws stating that possibly could not happen but these higher laws, these state laws and federal laws and they trump san francisco laws. also, the city could explore on a second bullet point, the affordable housing fee that doman is scheduled to pay is $3.5 million to the city, i mean, they can work something out there. but the city hasn't

really done anything, so maybe lowering that payment for doman or working something out. so, also, there is some errors in my brief. i referenced some statutes incorrectly and those are on page five, page ten and page 15. i talked about me competing against five people. actually, i'm fully competing against four feet and the statute was incorrect, the reference is 87, not 2. the date of my appeal, i accidentally made a 2021. it should have been 2022 on the final paper of the appeal. so, i wanted to touch on some things that were said. i have about one more minute here. what i'm going to do is, so, the

question of eight units, so the city and doman keep talking about eight units you about it's four unit asks originally it was supposed to be 8 units at 55% so they split it. so it went to 8 units at 55%. that was misleading on the city and doman's response brief. this whole thing really worries me because if i get the units the way the city's laws are set up, the property developer can give me one year's notice and i'm going to be back in the shelter. that's not the purpose of affordable housing is to house people so i think this is really just kind of -- >> thank you, that's time. >> it's worrying me and i just wanted to say that. >> thank you, mr. como. your time is up. thank you. we'll hear from scott amblige. you

have three minutes. >> thank you. i want to pick up on a few points that were made by members of the board. on this configuration of the units, president swig, i do think it raises an interesting question. they didn't change the size of them. what they did is put up a wall within each unit to say, this studio is now one bedroom. what is the implementation of that for the affordable housing rate? i don't know the answer to that but if you're marketing, if you're marketing a one bedroom, does it make it less affordable to those competing? we've talked about chronology, advise president lazarus asked about chronology, was there a commitment? yes. this is the notice of special restriction. it was recorded against of property in october of 2019 and it provides for the rental at 55bmi and there was a lottery december 7th, this is from the zoning administrator's letter of

decision, december 7th, 2020, her leld a lottery and december 8, 2020, the next day the project sponsored contacted mochd that the lease is paused and then for 11 months after that, there were people hanging by a thread because they've been told in the lottery where they ranked and they thought the things were going to be rented and they kept getting these updates saying, well, you got to wait a minute. you've got to wait a minute. when apparently the day after the lottery, it says the project sponsor contacted mochd to request the lease is paused as they were exploring a change in tenure from rental to ownership. why did they go through a lottery when they pulled the rug. december 8th, they contact and say hits the pause button,

please. someone gave an analogy to me this developer is like the guy who murdered his parents and asking sympathy because he's an orphan. that's what's happening here. they killed this project. the city didn't kill the project. covid didn't kill the project, the developer killed the project and they could have gone forward with their commitment and the project and we wouldn't have a vacant building sitting there and we would have a leased up building with 8% bmr units that are occupied. and i've got, gosh, i think that last caller hit the nail on the head. what we keep hearing here is oh, the reason, the reason we did this is because it didn't pencil out. have you seen a single piece of paper, a single sentence that's evidence to you that this didn't pencil out? do we have any idea whether that's true, that this project didn't pencil out if they kept their commitment? the answer is no. make them prove them. that's why we should have a public process or keep them to

their commitment. thank you. >> thank you. we will now hear from ryan paterson, mr. paterson, you have six minutes. >> thank you very much, commissioner, ryan paterson for the determination holder and ms. paterson will speak in a moment. commissioners, this is an unfortunate situation. it's not ideal in a lot of ways. and while i am relatively new to the project, i think i can say and i think everyone would agree that a developer would not sit on an empty building for a year plus for fun. this is not something that is beneficial to the project, beneficial to making more money to sit on an empty building. there are real economic pressures which ms. hughes want to address when

she speaks and my understanding is the owner asked ocd if they can still rent some or all of the units, the bmr units after converting the building to ownership and we were told no. so, it's not something that they are trying to pull some sort of bait and switch. they're trying to be good members of the community here. and again, a lot of this is unfortunate but there's no arterial motive i can see. likewise, while it is unfortunate, there has not been a violation of a law here. the law does give property owners the right to change between rental bmr's and ownership bmr's. the law has been followed and there's not a basis in law to overturn that rod de-- lod decision. would you like to

speak? thank you. >> i want to address the comments made by the public. i understand this is a unique situation and it's unfortunate to what ryan had said. a couple of items that were mentioned that there was a commission hearing where we commissioned 255% ami rentals and this was an exception. so there was no commission that addressed the affordable housing requirement. in terms of an an agreement signed with the lower polk group as far as i'm aware, there's nothing of that nature that has been signed on. i would stand to be corrected on that. there's conversation about the one bedroom and how we have built a wall. there's no wall built.

it's a simple conversion involved hanging of a door to give privacy. all the appropriate ventilations to facilitate the code that requires ped rooms and i think that's pretty much it. i understand the frustration involved. we wouldn't do this unless we had to and i don't want to bring it back to (indiscernible) but that's why we're here. and i know mr. digiacomo mentioned other options and we have explored those and we're here tonight. thank you. >> thank you. >> again, i'm in the real-estate business. i know about leasing. i know about renting out a building. and i know about loading buildings empty.

something bothser -- bothers me here. december 7th, you were in rental and december 8th, you decided not to be in the rental business. you made a business decision you were going to hold this building empty until you got your way to turn it into a condo because you were going to make more money, is that true? >> no. i wouldn't agree with that respectfully. there was an agent working on behalf of the property owner who authorized the lottery in error. the project owner wasn't aware and i know this sounds convenient until they told them this happened. >> so the property owner chose to hold the building empty because the rental conditions at the moment and i know, i have friends who have lots of residential rentals and they, everybody left town on -- somewhere between march 17th thereabout of 2020 and the end

of the year, a lot of people left town. the rental market went to heck and a lot of people who owned rentals didn't do so well. by the way, they're all coming back now and everything is lucrative, okay. but what -- so a conscious effort was made by the developer because they saw what was happening in the market, to say, we're not going to make money here right now and it looks pretty bad. we better change directions. okay. and contentiously made that decision and contentiously made the decision to keep residential housing and affordable housing off the market to rental, to renters and now, two years later, three years later, whatever it is, it doesn't matter, it could be six months, the market changes as it gets changed and you have an empty

building. you're going to have to go through a marketing process to sell those condominiums. okay. and you have no idea what they're going to sell for but somebody in a backroom in the accounting department who is doing spreadsheets and asset manager says we're going to make more money selling these condos than we would renting at this point or at least that was the point of you when you pulled the plug on december 8th. i mean, this is kind of what smells about this. i mean, really. i have been in this position before. you know, it didn't affect lives of people who were really counting on getting into, getting off streets and getting into affordable apartments but i've been in this position. do we keep it open or closed? we do spreadsheets and the comment made that we haven't seen numbers. but this is what is kind of bugging me here. there's a contentious -- there's a

conscious decision to keep this building empty. did your boss, your developer make a conscious decision to keep this building empty? >> i wouldn't agree with that statement. like i mentioned in the beginning, we have a bank to answer to in this scenario and that's -- >> if i asked for a letter from your lender that says if you go forward on december 8th, was there a letter from a lender that said, we're not going forward with this project if you continue to have it as rental property? >> not that i'm aware of. >> okay. then you've just defeated your line of advocacy. >> can we pause for a moment. commissioner chang had to step out. i apologize. thank you.

>> thank you, everyone. president swig will resume his questioning. >> i'm going to end it. i'm going to just end it by saying

this, did you not tell us that lender pressures are preventing you from moving forward in renting this building? did you not say that to us? >> yes. >> okay. on december 8th when you pulled the plug, when your developer, when your boss, whomever it was, pulled the plug and decided to change directions on this because of market conditions, was there a lender who had gone to your boss and said, we're going to suspend our financing because this is going in the wrong direction as a rental property? >> potentially yes. >> no. was there a letter, don't try to tap dance on me. i don't want to badger you, really. but this is important point. you came to us in front of this

court, this is a court and you said we can't do this because the lender is putting pressure on ourselves, on ourselves and i believe that you're telling the truth. right now, the lender may be putting pressure on you because of this. but on december the 8th when that situation was occurring, was there a letter from a lender that says we're pulling the plug and therefore put your developer in a point of being harmed or did they just simply say, uh oh, we're not going to make enough money on this? >> i believe there was general concern from the lender that this was not going to be feasible. >> you're not going to answer my question, thanks. >> we have a question from vice-president lazarus. >> so, december 8th is when you made the decision and the entire year of e-mails to the potential

renters was basically misinformation. >> i don't believe that december 8th was the decision day. i believe that was when it came to light this had occurred and the owners were in the process of deliberating how this is going to pencil out going forward. i don't believe that date was a decision date. if you want to call it that, that's not what i believe. >> but the renters wery sen rlly mislead as to what was going on for the entire year of 2021. >> we were working with the city departments to try and find a definitive part forward. >> when was a decision made it was going to go to purchase and not rent? >> it was some time mid 2021, i believe. >> okay. thank you. >> it could be september time.. >> okay. thank you. we'll hear from the planning department. mr. t. you have six minutes.

>> thank you again, president swig and commissioners, corey t. from the planning department and a quick few things to respond to the questions that came up. first, there's been conversation about the proposed switch from studios to one bedrooms in the prosect, as you may have noticed, that issue wasn't the subject matter of the letter of determination. that's a separate process that the project sponsor is going through to convert those studios to one bedrooms and that was not necessarily relevant or a request a part of this letter. i was also going to mention this project actually did not receive a planning commission approval. it did get a modification that it was eligible for but it was not actually subject to a planning commission hearing and approval stormily. there was a condition use related to this project

later which was specific to the proposal to add a restaurant use. it did -- it did trigger the use but the building itself did not -- the first paper of the letter of determination tries to give a date by date kra knowledge of the events and the point made earlier, the lottery was run and the next day there was a communication to pause. that wasn't the official decision that we're going to switch. it was, i think, the official indication that there was a consideration of a switch. technically the process to switch in the procedures manual is through a letter of determination process. and the request of this letter is -- the letter of determine -- the determination letter came january 5th. i can't speak to when they made their mind to

switch but the formal request to switch which was the request for this letter which was january 5th of the year. and the only other issue i would raise is and just to focus again on the fact that i completely understand why this has a lot of emotions into it and it's a one project that phrases larger policy issues and concerns about bait and switch and expectations and all the other things. for the purposes of this letter, he really -- it was a technical solution to a process that the property owner had a right to engage in and i could say we as a department discourage these late switches but fundamentally, we have to tonight to the fact they had the ability to do that and we need to respond in a technical manner and what this means going forward. this was the purpose of this letter to

commissioner lopez's question and my answer earlier, it was trying to find where is the most logical reasonable technical solution that takes the full account of both sides of the equation and lands on outcomes where we can move forward and get the units occupied so those were the only points i wanted to make on rebuttal but i'm open to any additional questions you may have. >> yeah. thank you for bringing up the technical solution piece. first of all, i have the greatest respect of you and i know you have a tough job and i think you did a good job figuring out a technical solution to this. and i want to ask you a question about how do you balance between technical solutions and historical precedent? again, i'm, i will

admit to be contaminated and being brainwashed because i sat on the redevelopment committee and it was beat into my head and it was a good beating and i'm happy for it and there were tens of thousands of people in this city that redevelopment screwed and excuse my term knowledge because they were given -- terminology because they were given these little letters that said when -- we're going to tear down your housing and we're going to put you back into affordable housing and you're going to have a preference and here's a letter that says you're going to have a preference, you're going -- you're going to the preferred people to get into affordable housing. never happened. okay. and through the good work of the redevelopment agency in the later years, it was great work done by our current mayor holding people

accountable to that, preference holders finally some of them snuck in, rightfully so, and got housing, got affordable housing replacing that housing that had been stolen from them by really not so nice people in the early days of redevelopment. okay. so, that's why i'm sensitive to this. so, with the historical precedent is that we have been, we in this city have been trying for decades and decades to put people who cannot afford the expensive housing in san francisco into housing at an affordable rate. so, this was an opportunity and technically, technically, you came up with a solution. again, i compliment you because you have a hard job. technically you came up with a

solution which is your determination. but the historical precedent, how do you weight the technical verses the historical precedent where -- the step that you took to allow rental apartments to move into a different class, we've been talking about that earlier, a different class, people have money, a little bit more and not much but a little more and stealing away preference holders finally getting into affordable housing and how do you weigh that while looking at the technical issues that you did to make your determination? this is what bugs me and it's right in my heart. >> sure. and i completely understand that. i think fundamentally the issues you're raising are important issues and they're applicable to how the city thinks about how it develops and adopts policy which

has been represented by the code so those, the issues you raised are not project level and those are citywide and national issues and those are big policy issues that you know, wherever you land on those, they're principals you want to apply across all aspect: they're determination issues and you made a determining based on technical items or you could have made a determination based on historical precedent where there are preference holders, there's a need for low-income rental housing and a special need of below market rate housing especially with preference holders that have these little stupid pieces of paper for 30 or 40 years that they can't use. how do you and i'm not -- it's hard, man. but

how do you make that determination, this is what we're here for. how do you make, justify that determination placing the technical elements verses the precedent that had been previously set as a priority to move people into affordable rental housing and in the process by the way, you're allowing a developer to, who made some bad decisions along the way to salvage and make profit on a product, a project? that's a sidebar. >> sure. i understand the issues you're raising. i think the distinction that's really important is that if the city felt like it was their policy and legally possible to create preference for rental over ownership in the affordable housing program, then that could be constructed and made part of

that program. right now, that's reason the case, right. a project can select if they want to do rental or ownership. there's no nudge in our planning code there. similarly, the code allows projects to switch because ownership and rental or rental to ownership and it doesn't provide any nudge for one switch to the other. i'm hearing a strong connection for rental and there may be good reasons for that and good policy reasons for that. that preference doesn't live in any real way in the planning code. which is the ground i have to operate in, right. if i start pulling out outside stuff that i think is important and i feel like i'm getting outside of what my role is in interpreting the planning code and providing this technical solution, so i understand where you're coming from. i can understand that position. but i feel like that

level of historical and policy consideration for these technical issues is a very slippery slope for me to start getting into in a lot of these determinations because then you really are making unilateral policy decisions in a position that's not a policy position. that's what our planning commission and the board of supervisors do. >> personally, that's what we're wrestling with in about two seconds. whether your determination based on technical aspects overrules historical precedence and other technical, other technical issues related to the issuance of vouchers to preference holders who were removed from housing and it will be out of the memory of most people in this room because it was so long ago so that's just

aztec any cal as some -- just as technical as the dotted i's and crossed t's in legislation so that's why i'm wrestling with and i think they're both technical with all due respect and i think you did a great job in doing the best you can on determination, whether i agree or not and these guys do work that out. i think it's important to surface because a lot of people who can't buy stuff but they can rent it and we've got to -- that's why we have rental. >> sure. >> okay. do we have a question from vice-president lazarus >> yes, thank you. if we were to overturn the lod, do they have any recourse? could they -- even though it's not mandated, could they seek to be heard before the planning commission and is there any other route for them to go to convert from

rental to ownership? >> sure. per the procedures manual, if you want to switch lynn yes, sir you need a letter of determination to document it and that's the document we determine which is the most appropriate to do that. so, if this lod was overturned, it's not like an approval. instead of approval, it's denying and coming up with an alternative determination. the board would need to land on a board determination as to if and how this project could change its tenure. so, i think some of that would land on the board in terms of, i don't think -- and obviously, mr. russe can weigh in if he would like but it's not a situation where just no determination can be made because we have to grant a determination if we want to request a written determine information and the code says in this case, you can change tenure

and if you want to change tenure, you need to good through the lod process and i feel like a decision needs to be made one way or the other as to know to what the current determination is. that raises the questions on what would be under the law for alternative determinations on how they would be able to move forward. if that makes sense. >> i think so. i mean, maybe i need to ask mr. russe to weigh in. i mean, and i'm not going there yet. if we were to go to the path of saying the zoning administrator errored or abused its discretion, what's next. >> the board would have to articulate why the letter of determination wazee y roen us in and they would -- was erronious.

>> can i ask a question so it doesn't get lost in my senior memory? wasn't a determination already made on this project in its original approvals? wasn't it determined through an open process? i want to know if this is a determination or a speculation. that's my question. was there not a determination made in this process that -- the determination made in this project that this was to be built as rental housing and in a public process with public comment and feedback and both sides weighing everything that it was determined that it is this be rental housing. is that -- was that a determination? >> i don't think so, no. >> okay.

>> the project as a rental project, there was not a planning commission hearing according to the zoning administrator on this project and as the and i i agree with the letter of determining information and the code -- a letter of determination and the code allows them to make this switch so they're taking advantage of that precision of the code as it existed at the time that they apply to make the switch. >> you made an important point, thank you for that. >> if i can elaborate on that. i think it's better to not think of it being a prior determine information or approval per se. they made an election of how they wanted to satisfy the affordable housing requirements at which they had many ways to satisfy and they had to elect one and they did and it was documented and we moved forward but because it gives them the ability to elect later down the road the switch how they do that whether it's changing tenure or whether it's going from onsite to offsite or onsite to fee or?

combination. and it's that later election that triggers the need for this letter of determination and it's the election to do it after lottery but before occupancy that is what makes this awkward because the code and the procedures manual don't contemplate or provide guidance for this specific point in time in a project's life when they choose to switch how they're providing their affordable housing. >> thank you both for that elaboration. very informative. >> i believe we have a question from commissioner lopez and commissioner chang. >> yes, thank you. i want to echo commissioner swig's comments about obviously you do good work and this is a tough spot to be in and i think what

i'd like to focus on is something you've mentioned before, it's in your brief about discouraging late changes, right and in my mind, that -- the under pitting there to a certain extent that's driven by this reliance that people have once those elections determinations are made, particularly as the process gets to its more advanced stages, right. so we say, hey, if you're going to make changes to your determinations, let's do it early so everybody doesn't start to rely ongoing down a certain path -- rely on going down a certain path. in my mind and i'm open to changing my mind, but in my mind, you know, going back to that demarcation we had

prelottery and post lottery, that interest of not undermining the interest of reliance that members of planning, members of other city bodies develop once the train starts going down the tracks, in my mind, that sets in you know, once you have a lottery, once people are getting these notices in the mail, in e-mail, this is your number, this is how many units there are and i mean, i have known people that have gone through the lottery, have moved into these units and i think there's a reason that it's called lottery because it can be life changing. and so that's kind of how i'm approaching it. and i know that

you know, if we had technical guidance on this bubble period, we wouldn't be here today. and so, it's something of a judgment call, right. and i think you know, we've talked about a technical solution and historical solution and there's different kind of tools in the tool kit that we could use to approach to this assessment without clear guidance and i guess my question is, with that in mind, with people receiving those letters which i think in large part is what is the foundation for that interest to say we're discouraging late changes because we had a plan. you know. i guess through that lens, do you think that following the lod, does that serve that interest of discouraging late changes in your mind?

>> so, a couple of things. i don't think, i agree with almost everything you said, the only thing i would adjust a little bit is i don't think our discouragement of late changes is based on expectations because typically this is happening pre-lottery. so we don't have individual lottery winners developing that expectations like you said. that's one of the differences here. i think the rationale for us is more that it's generally going to create delay and it's going to be longer before we bring affordable units online. it's also just, even though the code allows it, this isn't the only situation where the code doesn't give the perfect guidance and new situations come up, and it gets complicated and i made it a point to thank our other staff in plan and ocd and that wasn't just pandering, we have a lot of people who spend a lot of time working on a lot of this and

it's very important to try and get these things worked out and get the other fordable units -- get the affordable units online but it's a lot of work and we have complicated code previsions and you have to go back to the planning commission. it's messy and time consuming. i think the extra element this time is there was a lottery run. and you know, in thinking about this, there's thinking about that expectation. there's also, as we've talked about earlier, the understanding of what could happen in the future, too, right. because we can never know what a project sponsor motive and we don't know what can happen in the future if all the units were mandated actually to be rental and occupied and people on the lottery, are they going a slip on day one and say you have one

year. i don't know that. i can't really know that. so, it really was trying to factor in that idea that now that the lottery had been run, there was some level of expectation and that's where, what is the pull back from allowing the straight conversion to ownership units that would be subject to a lottery at 90% ami. what's the appropriate level of acknowledgement there? that's and again, it's not a perfect science, right. we don't have exact guidance or any, we don't have policy guidance on this specific issue in the code so it's a challenge trying to land on what is that reasonable middle ground kind of taking in what has happened and what could happen in the future and what is that logical split. so, i think that's, i hope that answers your question. >> that makes sense. one follow up. was there ever, and i don't

know if this is crazy and unheard of, i'm not familiar with how these things get adjusted and filled out, was there a consideration of rather than having it be zero or one percent complete change of tenure, you know, with an adjustment to the affordability levels, was there ever a consideration of a mixed tenure? right. to have it be some rentals, some ownership? >> i touched on this earlier but that's something we don't permit in the code and we've try to get away from that as much as possible because it had come up, i don't want to say on purpose but not elected early on. we had changes early on because the code was amended to address that and the mixed tenure creates a lot of challenges and not to go

into all of them now but just to say that's generally something we also strongly discourage is the mixed tenure. this has already been built and there's so many complications with this project. there's a lottery being run and the fact it's constructed, it's there. it doesn't have a csc but it could. there's an unusual awkward period for this project that we just kind of unprecedented. >> all right. that's it for me. >> we have a question from commissioner chang. >> yes. thank you. i mean, to me the biggest challenge of this is the fact that a lottery was run, right, because the project sponsor has, as you've noted, the right to choose tenure. ownership for rentals, that's the owner's prerogative. and the fact that the lottery was run to

commissioner lopez's point, set a bunch of expectations and really i'm sure upset eight people eagerly awaiting to occupy these units and understanding units like this -- as you have highlighted corey, they have undergone a lot of work with the city but i'm curious what's happening to the eight people? have additional units have been found for them? are they waiting until the next lottery process or what have we done in that regard? >> sure. unfortunately, i don't know i can really answer that question. i'm not sure if people who are part of this lottery are eligible to be part of other lotteries and they have taken advantage of those opportunities

or not. if ocd is on the line, she can answer that better in terms of what this quirkiness with this lottery means specifically for the folks on this lottery but i'm, unfortunately, that's a little bit out of my expertise. >> no problem. addressing the eight people that won the lottery doesn't resolve the policy question at play here which i know we're addressing through a technicality. i appreciate the perspective that this could be precedent setting but i think the reality is the code allows for changes. it's this weird funky awkward timeframe and the fact that a lottery had occurred, that is just really complicating the entire scenario but i feel like given the circumstances, if

there was some assurances about what -- how the lives of these eight people might be impacted, i think it might make this board feel differently or better understand the implications of the decisions being made and that was part of the consideration in the determination and that's why the four units offered at the lower ami would be disburse right for qualifying lottery winners to purchase those units at the lower ami if they were able to do so to that specific issue, it was the nod to that. i can't answer your question, does it affect them in terms of other lotteries during this period in time but for this particular lottery, that was the attempt to address that as well. similar to if they occupied the unit and they occupy the unit, they get

first purchase in that first year. with the lower ami, they have the first right to purchase the units if they can qualify and they want to do that. >> to claire fee, they would get the full -- to clarify, they would get the full year similarly if the unit were occupied -- >> can -- can you repeat that? >> if the units were occupied, the tenants would get full year's notice and right of refusal? >> yes. >> if the units aren't occupied, is the timeframe of a year being given to the tenants? >> yes. >> thank you. >> in the letter, we're focusing on the 4/4 but there's a few parts to the determination but there's an informational process for the project sponsor to work with the potential purchasers

from the lottery before the coc is purchased. it is basically making sure the project sponsor go through the affordable units before marking all the units. >> got it. >> lou gage is on the call. >> if you're able to answer that question. >> sure. >> i would appreciate it. >> good evening board members, it's a pleasure to be here, aaliya gage with the mayor's office of housing and community development. i heard a couple of questions, i'll try to address. the first is whether applicants from 1145 polk can apply to additional affordable housing opportunities? and the answer is yes. and yes, please, we have

lotteries almost everyday held by the mayor's office of housing and community development and we encourage people to continue to apply. there were 2,557 applicants and many of those folks have continued to apply to other opportunities in the meantime. and -- >> sorry. just to interrupt you, a clarification, it's not -- if they're encouraged to apply or can apply, there was a ranking, right, so eight people -- if there were eight units, there were eight people ranked one through eight, do they then get -- are they able to basically quote on quote one the lottery for another project or do they need to start from scratch? is the fact that they're ranked one through eight, does that go out the window entirely and therefore they have effectively

lost the lottery? >> i appreciate the question. so the way our lottery system works is every single applicant who applies is ranked. so, it's not the case that we rank only eight applicants when there are eight units available but rather we rank all $2,557 applicant and the way it works is that you participate in the lottery and after that time, you're qualified for the unit, so a lease up process begins in which the top applicants by preference are then essentially assessed for their eligibility in their qualification for the units, so i think the point has been made tonight while all applicants were ranked, no applicants were qualified. so the project sponsor did request a pausing of the lease up activity and to

mention project sponsors are responsible for qualifying applicants. it's the role of our office to monitor that lease up qualification process. so, in essence, there's no precise lottery winners at the time of the lottery or just following a lottery. there's a -- it's the beginning of a process of determining which of the ranked applicants in that ranked order will be evaluated for the available units. >> got it. that's super helpful. so, these -- since all two thousand people -- two thousand plus people were ranked, when they apply for the next project, do they retain the ranking and if a lease up process or -- in this case, a lease up process occurs, the project sponsor or

property owner would then vet or qualify these units to occupy or the tenants to occupy the units? >> each project has its own distinct lottery list, list of ranked applicants and so, those that ranked for this particular project would receive an entire different rank for another project. what we allow applicants to do by applying is opting in to an individual specific project they want to be ranked for. and part of that opting in is also that we are able to determine whether someone is eligible for a neighborhood preference on what we call our neighborhood housing, neighborhood housing reference program so do you live in the neighborhood within a half mile radius or in the supervisor district? so you're receiving preference for that

particular preference program we have, it would differ depending on where in the city the project was located. it's one of the reasons although there are others that each project has its own distinct lottery, so a lottery rank from this project does not carry into another project. >> got it. thank you so much. >> thank you. i don't see any further questions. commissioner, these matters are submitted. >> commissioners, do you want to start, commissioner lopez and we'll work our way down? >> yes. yeah. it's pretty rare that i support going against

planning with this level of -- with this burden of proof but i'm inclined to -- at the end of the day, i think this scenario is closer to a post occupancy reality than to a pre-lottery reality. and i think that that's the appropriate lens which to review this. and i think that's my base, you know, view on the situation as a whole and then you know, particularly when we're talking about these year plus letters from novo and if you look at the language in the letters, it's -- the language is

misleading. it's a pause. it's a delay. it's not, hey, there's a serious change to this program that you have invested in, that you've, in some cases started to build life decisions about and that's, that didn't come through in those communications and so, i think, you know, in my mind, that should be taken into consideration and that's where i'm sitting right now. >> if you take out the behavior of the determination holder, which we need to do, but you use that to find that the zoning administrator error or abused

his discretion, what is going to be your rationale for that? >> i think the behavior i would say is -- it's not completely irrelevant in the sense that if -- as it has been established, the za doesn't have clear guidance in this situation, right. and so, in a sense, you know, he was tasked with this question, hey, do we consider this, you know, point a or point c or point b or something in between and let's fashion the point b somewhere? by noting the communications, i'm not saying, hey, you know, you've been bad boys and girls and this is what you received. i think

it's just -- it's a testament to why we have that preference, that policy kind of position in discouraging late changes and that's part of why right. because people do rely on that and i do appreciate the point that it's not just entirely based on this concept of reliance, right. that there's disruptions and delays in work and complexity that arises with late changes as well but in my mind, the reliance that the individual citizens of this city make upon the program working out the way that it should, particularly when you get a number in the line and then you know, letters from an official

communication that says, hey, just hold pat. i think -- i mean, you know, taking a step back, it just reflects poorly on this program and the trust that people can place in the program. and so, yeah. i take the point that it's not, you know, i didn't intend this to be punishing bad behavior. it's evidence for why that principle of discouraging weight changes exist in the first place because people do rely on it. >> i completely agree there's a question of intent. to me it just sort of reeks of it, timing, everything else, but we're kind of forced into that technical mode and so, i just need somebody to articulate what that's going to sound like. and then i'll go for it but short of

that, i don't see how we get there. >> may i ask a follow up to what you're thinking, commissioner lazarow? so if we take the route that the za should have -- should have taken the position this is more like a post occupancy situation, then it sounds like the proper appropriate course would be to give all tenants a year's notice and give tenants the right of first refusal and i can't recall now and i might have to call the zoning administrator back up but is ami something that must be established in a post occupancy situation like? like in a post occupancy situation, let's just say that all eight unit were occupied and rented out, and the project sponsor decided to change tenure, would the city

require an establishment of ami for the eight units at 90%? because it would switch to ownership. >> the way it works for post occupancy, if a tenant occupies a rental unit, they get notice that it's an occupied -- they get notice this is going to be switched to ownership. they have one year, first right of refusal. the purchase rate is going to be at their established ami. it may have gone up because this could happen years in the future so they could be above 55% ami and it could be -- their actual ami could be 75 and that's what it would be sold at but it has to be less than 55 and no greater than 120. for example, if you rent it at 55 and then through whatever circumstances when you're going

on switch, you're at 130, good for you but like you're going to offer to purchase at 120 because that's the cap. so it's means tested to a cap. but no lower than 52% am -- 55% ami and you have the one year option. and then if you choose not to or you can't qualify for that, then it goes to a lottery for a typical 90% for the units, 90% ami ownership unit. >> president swig, i don't know if this is the appropriate time but the about ael ant for appeal number 2230 and the determine information holder want to request to continuance to negotiate a resolution but obviously there would be have to be agreement from the appellant for 2022029. and i know we're interrupting deliberations. >> i would like to continue the

deliberation and we can take that question because we've just ripped the bandage off the wound and i think we're doing a great job here, guys, considering everything and you know, if we -- whatever way we go, we're learn ago lot and putting a lot of information out there, evidence out there and i think we've achieved a lot regardless of the result here. but we've ripped the bandage off the wound and i would like to keep looking at the wound a little bit before we go in that direction unless anybody wants -- >> well, i do. >> oh, okay. >> it's a possible compromise out there, i would like to have the opportunity to hear what it is, so i don't really see what continuing this discussion is going to do? >> i'd like to ask one question because it really is pertinent

to your position, commissioner lazarow. when you were determining your position and i just want to know facts, we have one commissioner who says, look at this, these reams of paper, the communications that's consistent that went out leading people to believe there was still a process going on in good faith from the developer. you said, people were making plans based on life plans. i think you said life plans, based on these that gave them an intention they were going to do this and move in, which is kind of interesting behavior. when you were making your determination on

technicality and i use the word seriously and i'm not being sarcastic in any way shape or form, did you have access or did you consider the communications that at the same time or that had gone out to these individuals leading them to believe that they were making, that they can continue making life decisions because they were going to move into these rental apartments? and if you had, does that feed into your determination of what is appropriate as you finally wrote it? >> i mean, i would divide this into two parts because one of is, did i take into consideration the we may have

beenor of the project sponsor -- behavior of the project sponsor and no. i have a lot of technical issues lying at my desk and i have a lot of different people who behave in different ways and generally not just trying to use my determination to be punitive or correct these issues or that issues and i'm trying to solve the code issues. where it was relevant is the level of where the expectations and this is getting very much to what commissioner lopez was talking about, like his position is he feels like this feels more like post occupancy. and he kind of asked me and i said it fees like in the middle and the reason i said it felt in the middle because there was a lottery that had been run and notified but as aaliya from ocd mentioned, no one had been certified and no one had been offered a unit. so there was -- was there a lottery on some level of expectation?

absolutely. was it the same expectation of you're getting this unit and now you're not. it wasn't that level ear. even though this has been a long process and the lottery was run and the next day they asked to pause it and then there's all of '21 where it's, like, what's happening? you know, i can't say for sure when exactly the project sponsors made the final decision that they weren't going to honor that lottery and stick with the rental, right. i can't tell you exactly when that decision was made. i can tell you they filed certain applications on certain dates and they filed this request in january of this year. they filed the request to switch the fee in september of last year and that played out over a matter of a few months. so, i can't, it's hard for me to discern where certain communications legitimately is not truthful or

leading people on or was it the reality of the -- the -- the funky situation that everyone found them receive -- found themselves on. >> so you're leaning -- i'm not thinking one way or the other but you lean more toward the technicality because the communication was more ambiguous and not related to a contract or certification? >> i look at the factors that's going to help me decide, to commissioner lopez's point, we have guidance on this side of the spectrum and based on the relevant factors, where does it land closer to? the answer was in the middle which is why we landed kind of where we landed. with an understanding that a lot of determinations makes no one happy there.

>> i'm satisfied with the answer. would you like to consider your moving forward in hearing what the compromise is? >> or i think it's a request for a continuance? >> right. i think it would be fair to let mr. digiacomo weigh in since he's not necessarily a party to their agreement so -- >> i don't know if they have an agreement but he should be a party to whatever discussion that happens. >> i'm saying they want to continue this manner and mr. digiacomo should weigh in. would you like to address the board? >> sure. can you hear me? >> yes. >> yes. so i think giving the board some more time is fine. i don't want to pressure anything. one thing i would like the board to really consider is the

$3.5 million that doman is supposed to pay the city. >> we're discussing the continuance and this isn't for the purpose of giving the board more time but giving the parties an opportunity to reach a resolution. are you supportive of that or no? >> you know, if they want to -- do we have to have a follow up hearing? what's the outcome here? >> you would have to discuss that with the fellow appellant and determination holder. if you can come to an agreement, you could withdraw your appeals or what have you or possibly come back before the board if you make a modification to the lod, to the letter of determination. >> sure, yeah. we can all talk amongst ourselves, that's fine. >> okay. >> that's fine. yeah. >> okay. so, it sounds like this appellant is in agreement with a

continuance. how many time would the party would like. i would have to check with the planning department, do you agree with this? >> i think it would be helpful if we kind of talked about what the goals are because this isn't, again, this isn't like a project approval. this was a determination that i had to make and just really the situation and me. and then now it's appealed to the board and if you feel a different determination is necessary so i'm not sure who the negotiations or compromises are with because it was my call and now it's your call laterally so i'm not sure if you're asking us to go away and bring options

within the realm in a possible situation and give you scenarios and have parties weigh in on those. that direction would be helpful to understand exactly what the various parties are being asked to go away and do before we come back. >> you bring up a good point. you made a letter of determine information. this is your position. there's no argument because there's no other side. this is your -- we're accepting your letter of determination because you did not error or abuse or we're not because you did error or abuse. it's up to us. i don't understand the -- you're right. i don't understand where the negotiation is going to come because mr. paterson can discuss with the appellant's all he wants about a negotiation. it's your determination. you've already made it. you've sunk your own ship or ridden your own

ship. i think -- >> i think the board could say, if you're basically saying we understand where the determination was made, we think we're interested in exploring going down the spectrum in this direction a little bit and we would want to hopefully land somewhere a little further on the spectrum where everybody's happy. go for it and talk about that and let us know where further down the spectrum everybody can be. >> corey -- this isn't further down the spectrum. it's going to go according to your letter of -- determination and it's going to be convertible to condominiums with a below market rate consideration or it's not. and it's going to revert back to rental. isn't it one way or the other? >> that's why i was saying earlier, this isn't a no way or no. if it's not this way then what alternative because again

when the code requires, if someone request a written determination, we have to provide that determination to them and in this case the code says you can switch. when you switch you need an lod so again, i don't think there's a way the board can get around having to make a determination of if not where this letter landed, where is it going to land? again, the letter addresses a few different dials. you can tweak the dials in different ways. you can land in a different position, maybe not hugely different from this one or maybe substantially different but i think the answer, i don't think the answer can just be no because they still have the option under the law to change the tenure and the question is just how? what other perimeters and because we don't have exact perimeters for this, we're middle ground, we have to create it through this letter which is what i did but if you don't want to go with what i did, then you have to

come up with alternative per -- perimeters. >> to put your point on the noise a little bit, there's no option to say no you cannot change the tenure from rental to ownership, is that a correct understanding? >> well, i think there's the temporary aspect to this. >> of course. >> saying no doing this now and understanding you can't say no to doing it in the future as part of that. what i think would be helpful, if there were different potential avenues you're thinking about, it's helpful to kind of call those out so that we can take the time, from my end, i would want to review it from a legal perspective. does the code allow this to happen, right? are there issues under the code where we couldn't land on that position because the code won't allow us and other parties can

evaluate those scenarios through their own, in a metrics but i think that kind of guidance in coming back with that type of information on those types of scenarios would be helpful, if that's the path you want to go down. >> you have the ability to modify your letter, is that correct? >> i do or you do? >> no, well, i guess i'm asking you if do. >> it's an interesting question. i have issued my determination and that is now on hold until you make a call -- it goes back to, if the board wants it to be modified, you would need to modify it. the one thing we can look at and i'm trying to think about precedence if during an appeal, if it's procedurally possible to have the requester withdraw it, you can't go through a new process to get to a different determination but i think -- i don't know if that's

appropriate here because i've determined what i thought was appropriate right. so, i'm not really changing. if you guys want to change where i think -- where you think it should go, that's before you guys now. >> what happens if we think you error or abused or throw it out, what happens literately? >> i don't think it can be no. there has to be a determination. and it's an interesting question. that's something i can explore if we continue it because when you start talking about different alternatives determinations even if the determination is a no, i don't think we can do that action. i think it has to be -- there has to be an answer to the question. can we convert and if so, what are the perimeters. >> we could say leaning, treating the situation as opposed to occupancy request,

right. and pending further discussion at a later date with advice from the za about what other outcomes may be considered short of that, right. >> sure. >> i also want to point out the letter of determination is a response to a specific question and a specific facts and if they decide not to have some rental or what have you, then that changes the equation and they can withdraw their appeal and maybe get a new lod, i don't know. >> i'm getting some clarity. if we postpone the discussion on this, then mr. paterson could or the project sponsor could come

to mr. tig and say i have some new thoughts. >> we decided not to convert. >> we decided and with those new thoughts, can you make a new letter of determination or adjust your letter of determination? so in fact that's what we're doing if we decide to postpone a decision on this tonight. we're allowing -- >> what mr. tig says, he's going to stay with his letter of determination based on the facts so we could deny the appeals for that but he may issue a new letter of determine -- determination of facts. >> while we're taking the break, mr. paterson and his client may come back and say, new fact check, new fact set and we're changing the question, can you change your letter of determination. >> it has -- it's basically reissued and we have to show he error or abused his discretion. >> if i may, i don't think the facts will change going forward.

i think people's positions could change and but it's really important to point out though, even if the appellant's and the letter of requester negotiated on some compromise, there's no guarantee that's where i would land because whatever that may be may create certain precedent i don't agree with or i may not agree for a variety of reasons so there's no guarantee that path would work. what makes sense procedurally, if you know you want to land? where in a certain direction and you don't know all the details yet, that's really your call and we can obviously continue and come back to you with some of those scenarios that are, that could be permitted under the code to give you that understanding and obviously, the other relevant parties can weigh in on those types of scenarios as well and

then you would be informed as to what's permitted with options into the code and how everyone feels about it but ultimately, it's going to be your call because again, my role in this at this point is locked in because the facts aren't really going to change between like what's happened up to today to get us in the situation we're in. >> i think it takes away -- go ahead. >> president swig said no, commissioner lopez. >> right. >> president swig, i'm sorry, so

that's no? i don't know your testimony because we're on the topic of a -- >> mine as well. >> so, i think the concept from the parties, this is not, the question before you wasn't whether the light was green or whether the light was red. there's reasonable decisions that can be made in this gap we've been talking about. and the concept i think among the parties is, if we can talk and reach an understanding in that range of reasonable decision, we could come back to you and urge -- jointly urge that you grant the appeal, overturn the decision and make a decision based on the reasonable

compromise the parties have reached and during this time, consult a with the zoning administrator -- consultant with the zoning administrator to see if he believes it's within the laws of reason. and if the stars align, we have a decision that everybody could live with. that's just a concept. i don't want to testify. >> yeah. i think that's how i understand it and take the point that it's not, you know, it's not putting the assignment back on the za's desk, right. we need to decide how we want to move forward since it sounds like we're not inclined to deny the appeal so we can continue for a certain amount of time. give the parties a chance to confer, give

the za a chance to maybe collect some more of those options and then i think we're still going to have the task of making sure that this proposal from the party lines up the advice of what's legal and feasible from the za. i think our work isn't done one way or the other and then i'm assuming the end result, if we collect those pieces of advice and find a workable path forward, it's going to be a result of granting the appeal subject to some of the changes. >> do we have a potential date >> yes, july 20th or july 27th. we also have august dates.

>> i think the grieved party is the public. but let's do -- my point is it's earlier -- >> i don't know if that works for the parties, july 20th or 27th? okay. mr. digiacomo, 20 or the 27th? >> i'm just looking at my calendar real quick and the july 20th is fine. >> how about july 27th? >> july 27th is also good. >> okay. so, any preference? >> we're also happy to connect

sooner. did you say june 29th? >> the 29th has been cancelled, so it would be july 6th but we only have three commissioners on that day. so do we want july 20th? okay. do we have a motion? >> motion to move this to july -- okay. >> a motion from president swig to continue these appeals to july 20th so the parties can work on a resolution. commissioner perez. >> aye. >> lazarus? >> aye. >> commissioner chang? >> aye. >> that motion passes 4-0. that concludes the hearing, thank you all. >> thank you. >> [gavel]

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