>> good evening and welcome to july 6, 2022 hybrid meeting san francisco board of appeals. president swig is the presiding officer and joined by vice president lazarus and commissioner lopez. commissioner chang is accent. also present is (inaudible) at the control is legal assistant (inaudible) julie roseen burg the execive director and joined by representatives by city departments. corey teeg is representing the planning department joining

remotely. matthew green acting chief building inspector depament of building inspection. chris buck representing public works. henry (inaudible) deputy city attorney representing department of public health. jennifer (inaudible) principal environmental health inspector representing public health and (inaudible) environmental health inspector with department of public health. the board request you turn off or silence phones and other electronic devices. no eating or drinking in the hearing room. appellates permit holders and respondents are given 7 minutes to present the case and 3 minutes for rebuttal. people affiliated must include comments within the period. members not affiliated with the parties have up to 2 minutes each to address the rebuttal. mr. longly will give a warning 30 seconds before the time is up. three votes are required to grant appeal or modify

a permit or determination. if you have question about rehearing board rules or schedules e-mail at boardofappeal@sf (inaudible) and we will have the ability to receive public comment. sfgovtv is providing closed captioning. go to cable channel 78 and it is rebroadcast-a link to the website is found on sfgov.org. public comment could be provided in two ways. call-enter webinar

id82436978295. to block the phone number first dial star 67 then the phone number. listen for the public comment portion for your item to be called and dial star 9 the equivalent of raising your hand so we know you want to speak. you will be brought into the hearing can wh it is your turn. you may have to dial star 6 to unmute. you have two minutes to provide public comment. our legal assistant will give a verbal warning. there is a delay between the live proceedings and what is broadcast, therefore it is important people call in reduce or turn off the volume on the tv or computer. if any participants need a disability accommodation or technical assistance make a request in the chat or send e-mail to boardofappeals at sfgov .org. the chat can be used to provide public comment or opinions. we will take public comment from the members physicallyprint in the hearing

room. now we'll swear in and affirm all those who intened to testify. any member of the public may speak without taking the oath. if you intend to testify and wish to have it board give your testimony weight raise your right hand and say i do after sworn in. do you swear or affirm the testimony is the truth whole truth and nothing but the truth? okay. thank you. thank you. if you are participant and not speaking put your zoom speaker on mute. we are now moving to item 1, which is general public comment. this is a opportunity for anyone who would like to speak on a matter within the board jurisdiction not on tonight's calendar. anyone who wishes to speak? i see one hand raised. john nulte, please go ahead. >> good evening. i want to know why the hearing is not being broadcast on

zoom and that's my question. it was in the past and now hybrid meetings why isn't zoom also being shown so people can see it on zoom? thank you. >> okay. >> i like a answer. >> do we have a follow up alec? i didn't realize there is a zoom issue. >> you can view it on the zoom i believe on your computer. the link syncs up to the actual room on zoom and then sfgovtv projects the tv broadcast so you can watch both simultaneously. they dont coincide with each other because they are different plat forms. for example i am seeing it says clerk's desk. >> that's because the clerk's

desk is the main party that is broadcasting for the sfgovtv. >> thank you. any further public comment? please raise your hand. okay, i don't see any further general public comment so we'll move to item 2. commissioner comments and questions. any commissioner comments? >> commissioners, any comments, questions? missing a few people. practicing social distancing. no comments. thank you. we are fine. >> okay, we'll move to item number 3 adoption of the minutes. before discussion adoption of minutes of june 15, 2022 meeting. >> commissioners motion? >> move to approve. >> we have a motion from vice president lazarus to adopt the minutes. any public comment? please raise your hand? i see a phone number ending in 1405

raising your hand. did you want to provide public comment on this item? please go ahead. phone number ending 1405 you may need to press star 6. >> thank you. no comment on this item. >> okay. thank you. so, we dont have any public comment on the item, so on vice president lazarus motion to adopt the minutes. commissioner lopez. >> aye. >> president swig. >> aye. >> okay, that motion carries 3-0. we are now moving on to item number 4. this appeal 22-039 koheba gift incorporated. subject property is 2310 market street appealing april 6 to koheba gift inc. by director of department of public health. 10 day suspension of retail

tobacka permit t-87168 due to illegal sales flavorered tobacco. we'll hear from the appellate first. is the appellate present? mr. alee is a agent for the koheba group. we did want get a indication he was not appearing but we did not receive a brief from him. president swig do you want to just go out of order, maybe give him time or-? >> have you heard from him? >> there is somebody in the-on the zoom. >> this is the person it is possible him. the phone number ending 1405, go ahead, please. please dial star 6. okay, you should be unmuted now. go ahead.

>> sorry. (inaudible) >> okay. >> that's not the appellate. president swig should we try giving him a call or do you want to just wait, go to the next item? >> go to the next item and push this-make this the last item. >> okay, we do have department of public health representative standing by so we probably shouldn't have them wait too long. >> let's go one item and try this again. >> okay, we'll move on to item 5. 22-040 gordy holterman versus san francisco public works. property 2350 green street appealing issuance may 3, 2022 to archdiocese of san francisco and school. approval to remove 5 street trees with replacement of the condition of the replacement trees are a minimum of 36 inches

box size and property owner works with the neighbors and buf staff on the selection of a replacement. >> just to dive in. we are very fortunate in the neighborhood to have a very knowledgeable arborist who represented us during the hearing. unfortunately the hearing itself was very poorly attended by many of us because of the both the relative lack of notice and it was just a inconvenient evening for many of us. plus, we were surprised it passed given genevieve anderson's very thoughtful commentary during the hearing itself. but we wanted to make clear to the city that not only are these trees quite healthy and typically have a

life span of 60 to 75 years and they are just over 20years, 20, 25 years into the life span, but it just is very confusing and vague how the conditions around the hearing approval or the permit approval are meant to be carried out, so specifically backgrond from the brief, this agreement between the school and neighborhood goes back all most 30 years now, 28 years, so there is a private contractual agreement that the school is to maintain these trees. specifically in that legal agreement it says that the trees will be grown to full muchurty i suppose we can argue if that is full life span or

full size. they have another 40 healthy years ahead of them and frankly the ones-one of the trees was sort of mutilated by the school several years ago and replaced with a pitiful looking cherry tree, but otherwise the trees are in great shape and we are a little surprised that the tree inspector at department of public works agreed to the destruction of them and we are still sort of amazed by that. most importantly, we just in addition to saying that the trees are super healthy with lots of life left ahead of them, the neighbors are more then willing to take care of these trees. we already water them because the school doesn't adequately water them, but more

then willing to help pay for the cost of pruning them and have reached out to the school several times about trying to do this. i thought it was interesting when i filed the appeal the school is like who will have the legal liability if a branch falls down or something and i think we are happy to take on that property that the trees sit on if that's the school's desire, but it also should be understood that not only they are a private contract around those trees, but the timing of this tree removal probably has a lot less to do with the trees actual health then the school's recently obtained permit to do some work on the school and so all the neighbors sitting going, wait a minute you just got this approval to do some rehab work on the school, which by in large the neighborhood supports and then all a sudden

you take down all these trees and we are left with this view of this parking lot. i think there's just some question marks around what the school's real motivation is here and there is just tremendous ambiguity from the hearing decision itself around what exactly the school would have to do to illegally remove these trees. i think i wrap up there and give you back my extra time. >> thank you. if you are finished we'll now hear from the-we have a question from president swig. my apology. go ahead. >> mine as well get this out of the way. mr. rus se, can you give us ground rules please with regard to-how we

separate church from state? had no punt intended. i'm sorry. just my bad mind at work. we have a through this brief there is-in testimony, there was mention of a civil suit and then we are here on an appeal. can you give us the ground rules on separating the civil suit from the appeal so we dont muddy the waters and go in the wrong direction, please? >> sure. deputy city attorney brad russe. my understanding there is a claim there is a contractual agreement between the neighbors and the school. my further understanding is that the city isn't a party to that agreement and there is no assertion of any other development restriction associated with the

prior city permit that would prohibit the school from removing these trees, so the board can certainly consider whether there was a understanding or agreement previously with respect to these trees, but the board is not a place where a private civil contract would be enforced, so if the parties have a dispute they believe there is a contractual breach of contract claim that would be something they would bring to a court. unassociated with this permit. so it would be your advice then to stay focused on the appeal as an appeal related to a tree removal as we would hear weekly on other tree removal like appeals? without consideration of any

civil action? >> this is denova hearing. you can consider the evidenceprinted but whether there is a breach of contract the city isn't party to isn't something you need to concern yourself with enforcing. >> okay, thank you. >> just to be clear on that , the city wouldn't have liability for allowing somebody to breach a contract? >> i don't think we are at a question and answer. you do have two minutes - >> sorry, we-you can bring that up in your second section and argue that point. we can't answer that. thank you. >> mr. holterman you are finish ed we'll move to the determine holdser and hear from the archdiocese and mrs. penny is here. >> good evening. thank you. >> sorry, we cant hear you.

can you please move the microphone forwards or up maybe? it is possible the other one might be better, to your left. >> that good? can you hear me? how about this one? can you hear me now? >> that is little better. >> can you hear me now? i just need to project. thank you for the hearing tonight. i have a power point that i shared with alec. the reason we submitted for a permit to remove the trees was that in january 19, 2020 one of the trees fell during a wind storm and did some property damage to the parking lot, the paraish parking lot and so we immediately took care of the tree, we got tree

shredder and got rid of the tree but luckily there was no damage to humans or other property accept for the fencing which we took care of at a later time. >> your presentation is up. direct alec- >> okay, can you go to the next slide? there is just a picture of the tree when it had fallen, and the next picture will be on the inside of the parking lot. next slide. sorry. you've gone ahead. should i just continue? okay. >> we can pause your time. >> that's the first slide.

>> thanks for your patience everyone. okay, here

we go. >> here is the other side of the parking lot where the tree had fallen. on the next picture, you heard discussed a master plan for the parish and school facility and this is elevation from the phase 4 of the plan, which shows a sport court on the parking lot and then the tree-the reason the photos here is the trees are in (inaudible) there was no intent to remove trees and not have trees there. if you go to the

next slide--after-during the pandemic the tree was removed and i have a picture, a rendering of the trees in existence. the one ong the right is the cherry tree am holterman mentioned. not sure when the original ficus tree came down but the cherry tree that was replaced is not fruitful. x marks the spot is the one that fell during the wind storm, there is two other ones. the one circled is pictured on the far left and shows the diseased trunk of the tree. when the original tree fell, there was a lot of root rot and it looked like the person that was helping us, the tree trimmer helping us remove the tree said it had been plant ed in a plastic pot and it looked like

there had possibly not rooted properly, even though the trees are very beautiful and green. the next slide please-shows the rendering of pierce street and two trees circled are also photographed with the tree trunks that show there is some issue with the growths of the tree or the health of the tree as far as the arborist concerned and then the final slide is the master plan. once again reiterating the intent is always to keep the trees. our hope as a representative of the parish and the school is to work with the neighborhood and work with the bureau of urban forestry and potentially replant-replace and replant these trees with something that will grow and be fruitful instead of what exists currently. thank you.

>> thank you. we do have a question from president swig. if you please go back. thank you. >> is there a reason--is there a reason you did not present a brief prior to this hearing? >> i'll just say i'm a novice. i didn't understand what was required and the parish currently does not have a pastor just has a new pastor now. >> just to advice you and it doesn't matter with you, last week-when we don't get a brief it places this panel in is severe disadvantage and public at severe disadvantage because we dont know what we are talking about if we are not properly advised and dont think it works to your advantage because the appellate doesn't have a chance to

properly prepare to know how to talk with you and all that. i am sorry i have to bring it up because them is the rules and let you know it isn't advantageous to you not to have submitted a breef. it is just advisory. >> i totally accept that and responsibility, though like i said, there was supposed to be someone in charge of this and not me. >> okay. let me ask you one question, you said in your brief that we will have a plan to replace these four trees. why with all of this-there is clearly been time, there was one tree has been-was problematic and that it fell down. one tree is problematic in that it seems to have failed. there has been time, it is a day to day ocurance, are you coming to the

panel without a plan or are you looking to us to give you that plan because we are-this is the problem we don't have a brief- >> i completely understand. so, we had reached out requested the permit, got the arborist to attest to whether the trees were healthy or not and he came out, dan i believe, i have spoken to chris as well and we were waiting for the bureau to advice us on what trees the city would permit to be planted, so that we could move forward and then we got the appeal so we waited. >> okay. i'll speak with mr. buck about it. >> okay. >> thank you. >> thank you, we'll hear for bureau urban forestry. >> sorry one more question. >> commissioner lopez. >> just a question. i

think my sense is if there was a planting within the plastic pot seems that would have been decades ago so it may precede your time on this project, but there was also some statements from the appellate about lack of maintenance and maybe some conflict between the archdiocese and neighborhood about who was in charge of caring for the trees. if you can just seek to that general maintenance and those types of concerns and it sounds like you are working with a arborist now it sounds like with buff as well so not sure where those actors have entered the picture, but if you can give us a little backgrond on the general maintenance and how you worked with experts in this area to take care of the trees.

>> the experts are from the bureau of urban forestry so chris and dan are who i have been in contact with regarding potential replacement if they deem them unhealthy or sick. this was 1989 i believe, what mr. holterman brought up so yes i wasn't there, i have only been there 9 years, i have been here 9 years. when the tree fell over and this is what we are trying to discover. when the tree fell over it was planted in a plastic pot. one of the arborist i spoke to said that's not unusual if the bottom is like hollowed out so the tree roots will grow downward instead of outward and disrupt the sidewalk and so these trees are not necessarily in our property. the are sidewalk trees so we are just trying to do due diligence to

try to take care of them, and if you see the photograph, i believe that mr. holterman submitted from mrs. anderson's home view from pierce street you see they look very healthy. they are very luscious green, large top heavy trees. my concern when i submitted the permit was if this one tree fell would the other ones possibly have been planted similarly and of the five i showed you circles-the ones damaged the trunk does not look healthy and so that is my unexpert opinion of what i have seen and who i have spoken to and how to move forward. that is what we are waiting for. when the appeal came through i was working as a principal so, i didn't have time to move forward and it was handed over to the parish who like i said, just got their leadership july 1, so he is made aware

of this appearance and this appeal and i will definitely work him into the picture and then he can definitely take it on with the finance council at the parish level. i am at the school level. i'm just trying to help out. does that answer your question? >> yes. >> okay. >> thank you. you can be seated now. we'll hear from the bureau of urban forestry. welcome mr. buck. >> good evening commissioners. i will pull up the power point. just take a moment. chris buck with san francisco public works bureau urban

forestry. good evening commissioners. i have a power point and i assumed that the permit holder the respondent would submit a brief and just made contact with them when that deadline came. i didn't receive one so i'll try to fill in gaps you feel may exist in this permit. we received tree removal application from the property owner for removal of 5 ficus trees with replacement. the street trees are ficus trees and they are the back of sidewalk but still technically within the public right of way. ultimately the city assumed responsibility for the trees as of july 1, 2017 through prop e. that said, the applicant reached out to us when they had a failure and they were concerned about the other trees. when we evaluated the trees there is some

unknown information regarding of these 5 subject trees proposed for removal how many may be in a container. it is the above ground conditions of the trees that actually we can see with our eyes as exprtert certified arborist that have us concerned. the staff level we approved the tree s based on our well established concerns about the ficus trees and how the trees fail. if we can move on i will show the images now. the issue with stems of similar sizes is that they work -they force themselves apart and this caused a lot of ficus trees to fail in san francisco. there is a lot more known about the importance of early

structural pruning but only in the last 20 to 25, 30 trees is that common practice to prune trees when much younger to enhance structure and prevent the failures taking place. several years ago, public works recognized this public safety issue and we created a director's order. i wrote a bulk of it that talked about how and why ficus trees fail. these are examples of ficus trees with stems of similar sizes with very weak unions and they are literally split apart. this is visual of our director's tree removal criteria for ficus trees. the trees themselves are not overly large. i say they are on their way to maturity. there are two trees on the green street frontage and 3 trees on the pierce street frontage and they all have very poor structure prone to fail and i wanted to

make sure that we showed these images. this is what we emphasize that our public works hearing, daniel hoffman who is a well qualified certified arborist. we attract some of the best arborist in the country. san francisco has a world class reputation having a little proactive approach to the environment and being certified arborist in san francisco is a pretty highly coveted position, so i would our staff is highly qualified to identify the potential structural defects. as you look at the subject trees you see not only do they have very poor structure and also dekay as well, which is not something i typically bring before you. in this situation we have two major issues, both the poor structure but also-from public work perspective this is a straight forward case of 5 ficus trees in very

poor structural condition. they have codominant stems including bark and dekay present at the main unions so this is the basis for our approval. we do have a empty basin we need to replant on the pierce street frontage so that is something that we'll need to do. that concludes the visual portion of the power point and then to circle back to some of the points raised, one of the photos that the appellate shared was pretty compelling. a few across the street from pierce and it really does show how successful the school has been to create that canopy as committed to in that private agreement and so i do feel for the appellates in this situation. i understand that these trees look shiny and green. it is look liking as a shiny car and having a parent tell you no, no, the

engineer is what will make this thing sus inable. the structure condition of the trees is very very poor. the timing of the project and the phases of the site is not related to our staff approval. as you all know, we are arborist, we put the blinders on with what is going on on site and we evaluate the trees based on their own criteria. there was some statements made about ambiguity regarding how the school would have to illegally remove the trees. we had third party agreements come before us at public works before. the city attorney has straight forward language, straight forward in legal speak. it is in the resulting decision that references that the city does not provide legal advice to members of the public concerning private contractual agreements, which the city isn't a party. there

is the rest of the paragraph. essentially it up to the permitee to act on a permit if they have feel they have the right to do so. from staff's perspective, this is a really straight forward case of removal of 5 ficus with replacement. 36 inch box replacements. i was not involved as both parties seemed quite equip to go to cover this. the school seems very opening to discussing the specious with the public so i wouldn't recommend a continuance, because i have a commitment from the school we can work with the community on replacement specious, large statue trees at maturity. it is a really straight forward case to us and one lessen learned is i should have reached out to the applicant to make sure they were submitting a brief on time. the experience i had with them has been they have been very organized. we have been in touch quite a bit prior to the

public works hearing and so i just was caught off guard with the lack of a brief, but i thank you i feel confident about their commitment to plant replacement trees. thank you. >> thank you. we have a question from president swig then vice president lazarus. >> three questions. two should be short. one, who owns the trees? the city or- >> the parish. >> technically the public owns the trees, the city has jurisdiction and the city has responsibility for the maintenance of the trees. >> right, the maintenance, but who is going to-who is responsible for paying for the replacement of the trees? >> the school is because they submitted removal application to pursue removal, so the school would establish the replacement trees for three years and then the city would assume responsibility after three years.

>> second question, we on this panel have seen many examples of ficus failure and over the last i think two to three years especially there have been significant examples of ficus failure. those who wish to save every tree damaged or not in the city would claim that we have to save every ficus regardless of damage or deterioration and others who are a little more pragmatic about it. but, for the benefit of the appellate, because i think it is a is key point in your presentation, can you out of your memory cite a couple locations where there has been failure damage and harm either to living or not living objects of value? >> thank you commissioner. it

is really occurred throughout san francisco and if you were to google or search ficus tree, san francisco there is lot of very dramatic images of ficus stems split and fallen across the street. we had one in front of the main library. the corridors had a lot of ficus trees planted along hyde street and russian hill, lumbard street, columbus avenue (inaudible) we had a serious near fatality, a serious injury to a person that is subject to a claim and settlement with the city, so it has been throughout the entire city, and it's been the failures are occurring where these structural defects exist, so it is something that became a much more common acurns as these larger

trees mature, 30 to 40 years after planting so we still will evaluate them individually as you all know, and that's our approach to these five trees and the way these stems are attached you couldn't prune them to mitigate the risk at this point in time. >> third question, another shorty. i see the recommendations, 36 inch box, the concern of the appellate is obviously maintaining the canopy or getting back that canopy, which is mature over a couple decades. why not 42 inch box? >> one of the challenge of the site is the trees are located-at some points in the school representative can explain it better, but there is a grade change with

the parking lot on some portion of the property where it dropped down several feet and so we will expand require them to expand the basin into the path of travel a little bit to accommodate the 36 inch box. that was sort of the largest we felt we could make work on that site, but that is a point and i meant to bring a photo showing the interior of the parking lot that certainly on the pierce side there is a drop in grade. i hadn't considered whether 48 inch box would fit in the site. one olive branch for the appellate is that we do know the smaller the tree the faster it establishes and catch up with the larger box replacement. it will happen. >> thank you very

much. >> thank you. vice president lazarus. >> thank you. i want to clarify that there are five trees-is one of those the cherry tree that replaced the ficus? >> no, commissioner, the cherry tree, the street tree towards the curb, so it is a tree the cherry tree replaced a ficus tree that had been removed so that is not part of the literal proceedings this evening but i can assure the appellates we can look at the conditions of the street trees planted towards the curb and look at opportunities if any of those trees are not thriving to look how to beef up the potential canopy replacement trees in those sites. >> okay, so we are talking five ficus trees and each of them individually has got problems that warrant their removal? >> it does and the tree i referenced that failed was not part of the five. that was a additional tree. >> thank you. >> okay. thank you. we are now moving to public comment and president swig

indicated it would be two minutes. if you are here to provide public comment please raise your hand. we are taking public comment on this item. please raise your hand. you may need to press star 9 if you called in on zoom. i don't see hands raised. okay. michael nulte, please go ahead. you have two minutes. >> my name is michael nulte. i guess i just had a couple questions based on the presentation. one is, how many trees will be replaced after removal? how many basins? i wasn't clear about that. and, it seems to me that if there is an agreement that maybe a similar agreement

needs to be made to keep the trees in place for maturity because it will take three years to get to-three years to start the planting and do the watering. so, that might be something that the appellate can consider doing, doing a new agreement with the parish. and, it is too bad a brief was not made so the public could better understand what the actual plans are for the parish because it is confusing when one side has given the information and the other side has not provided adequate information for everybody concerned. i dont see any reason for continuance, and i hope the decision

makers come up-(inaudible) thank you. >> thank you. we will hear from john nulte. you have two minutes. please go ahead. >> yes, good evening. can you hear me? >> yes, thank you. >> great. couple issues that we are bringing up is that the presentation that presented was january, so it does not show the current condition of the trees that was 6 months ago so this is a problem (inaudible) only presents what he presented back when it was first heard so therefore we don't have updated pictures of what currently the site looks like right now for the commission to actually see what the trees look like currently and it seems like no party seems to be showing the actual as of today or this week pictures of what these

5 trees look like so it is conjecture because they are not showing what the current condition of the trees are. for the board to make a decision they need current information, not 6 months old or more information on the trees and inadequate information, so trimming the trees would probably be your first bet to deal with some of the issues but i dont hear that on the table and since i was at the first hearing i still think that there were a lot of people that were at the hearing and discussing dissatisfaction of the removal of the trees. thank you. >> thank you. is there further public comment on the item? please raise your hand. i dont see hands raised so we'll move to rebuttal. mr. holterman, you have three minutes. >> thank you. i appreciate the president's comment he made very good ones. the

school and church already have a variance in a rosedential neighborhood that provides itself on green scape, a variance where they don't have to have yards and trees like everybody else in the neighborhood does. the few trees they have they are talking taking down and while (inaudible) is very caresmatic and delightful to speak with, frankly we lost trust in her. i had a open invitation with her 9 months now to meet about a number of issues and says let's get together and we never actually meet. why is it-last minute she comes up with this presentation and she highlights how in the buildsing permit request they made-that was approved last summer they talk about keeping the trees? the

minute they get approval for the refurbishment activities all a sudden request to take down these trees? doesn't that seem strange? the trees that fell fell two years ago. if we take down every tree because there might be a branch that falls down or a tree that falls down san francisco would have no trees. i am not sure that's consistent with the carbon offset goals of what most are trying to achieve. to mr. nulte point the trees are in fantast ic condition and how is it the department of urban forestry can't recommend pruning the trees? i wish gene vive was here. we offered to pay to prune the trees to the extent that they feel like that would prolong the life of the trees, which we believe already has substantial life.

i just can't state enough that to mr. nulte's point these trees are in excellent position. mr. hoffman worked for pg&e. are you kidding me? he knows one way. that is take down trees and not have the hassle. there is so much ambiguity around what is replaced so the president's point, why don't they put bigger trees and to stand up there and say smaller trees grower. of course 2 foot grows to 3 feet and that is 60 percent growth versus a 6 foot tree growing 7 feet. they grew one foot. that is moronic statement. we plant smaller trees so they grow faster. please that destroyed your credibility and we are more then happy to pay for

pruning. >> thank you. we have is a question from president swig. >> do you have is a suggestion for a replacement tree? >> to the extent these trees want to be replaced, a ficus tree is a beautiful tree and i agree pruning methods are better today. we would be happy to work with the school around a large bushy type tree like a ficus or a maple. the cherry tree they planted by the way was on slide 5 of the presentation in the upper right, it is a scragling little thing. you sit and go-yes, we are happy to work with them. >> thank you. thank you. i don't see further questions. we will now hear from mrs. penny. you have 3 minutes. >> thank you. i'm sorry, you are upset mr. holterman i hear and hear you. i think where we have come to

contention is that we have been in pandemic and lost our pastor in june of 2020. he passed away and so we have been managing the school the last 2 years during the pandemic and we haven't had-we only had interim administrative support at the parish and we just finally got a pastor and so i can all most guarantee that the parish will be reaching out to mr. holterman. i was instead stepping in for the parish and the school being really the only administrator on site, so really this is a parish issue and the school has stepped into support as best as we could, not being a lawyer. not being privy to what trees are and being a specialist and arborist. i do trust in the bureau of urban forestry and in their opinions and i

would love to keep the trees if at all possible, but what i heard chris say was that the new way of trimming these ficus trees makes it very difficult to do it now at what maturity level they are at because the branches have already grown in. right? so, however we can resolve this, i would love to be able to make sure that the parish connects with the neighbors and that they can find some resolution that moves us forward and gets substantially healthy grown trees and grows them quickly. i love those trees, i dont like to get rid of trees. i speak for the trees myself sometimes. >> we have a question from president swig. mrs. penny. thank you. >> again, we are a little disadvantage because we didn't get a brief. you gave us a overview of your

renovation plan, and where-if the trees were not considered for removal, how would your renovation plan go forward? and if it is the coincidence of the potential of these trees being removed, does that change the renovation plan? where does the-this the disadvantsage of not able to study. how does renovation plan effect those boxes which house those trees? you have any idea? >> the intent was to keep those trees. they are pictured in the renovation plan so the intent was to keep them. >> so, any renovation is really inside that wall? >> it is inside the wall, correct. >> so it doesn't

matter whether there is renovation going on or not? okay. >> we would work with the city and protect the trees, which ever exist there. >> great. thanks. appreciate it. >> thank you. we'll now hear from bureau of urban forestry. >> good evening commissioners, chris buck, public works. so, just a couple points of clarification. one thing and i guess you could take it for what it is worth but our urban forestry inspectser dairl hoffman when he approached me there was a general maintenance person of the school all i heard from the person is public safety and they got a issue and he wanted to talk about pots below ground. we have our ears up, we have our radar up for construction related impact s,

altearier motives and never had the sense here. that said i completely understand the appellate's loss because that photo provided by i think mrs. anderson is compelling and wanted to include it in the brief because i want him to understand we see that. the trees are doing what the goal was to shade that and screeb screen that lot. that said the trees are in very very poor condition mpts we disagree on that, and what happens when you plant a larger tree, it takes a while to establish. it all most sits there a few years so it is bigger at first. it is bigger, but the younger tree smaller plants establish more quickly and it will out-strip that in size after a few years so i wanted to clarify that. again, i understand the frustration here. again, relatively straight forward removal of 5 trees,

replace with 5, 36 inch box trees. the applicant-we want to discuss replacement specious with the community, the appellate. we can also look at the applicant willing to plant a 36 inch box size tree in a empty basin as well and we could look whether or not that cherry tree is sus tainable or public works should replace where the matching specious we all settle on. i do think there is opportunities to try to come together despite the fact that unfortunately these trees are really in poor condition. thank you. >> thank you. we have a question from president swig. >> obviously one of the concerns here is timing. should we move to allow these trees to be removed. you know from history of dealing with this panel that it is our concern that sometimes trees are removed and it

takes a while for them to get replaced and then we have empty ty boxes and that creates problems with the neighborhood. what can we do here-what can you tell us about timing? if we were to move forward and allow the removal of these trees, what would be the timing of the remurfbl removal of the trees and how quickly and nimbly could the trees be replaced so as not to further outrage the neighbors? i use the word outrage because clearly the appellate is noticebly upset and i would be too. how does this work and can you put at ease the concerns of the appellate that there wont be any trees for a long

time and then it will take a long time to reestablish. >> thank you commissioner. the permit that public works issues typically allows the property owner 6 months to act on the permit to remove and replace the tree, the subject trees within 6 months. i will say that based on feedback as highlighted from the community, what i encourage and perhaps could be a condition or the applicant may be able to commit to it, but reducing the time between removal of the existing trees, removal of trees, removal of stumps, then preparing those sites for the replacement trees, but shortening the amont of time between tree removal and replacement and doing that in as tight a manner as possible so that it's less of a sore point. >> you have a suggestion as to

what is realistic and probable? >> i believe that once the trees are removed that replacement trees should be able to be planted within one month. it is a single site. they are the master of the site whereas public works is the master of $125 thousand. i do believe that from the moment of removing the tree to planting you could ask the applicant to commit to one month turn around time. it just means again we want to commit to replacement specious prior to removal, so that is lined up. you order the trees so you physically have them available. you have a contractor ready to plant, which is separate often from the tree removal contractor. you put those things in place and give yourself a few weeks of wiggle room. you might say two months just to be safe, but a commitment that the

time between removal and replacement be as short as possible. >> your suggestion off the cuff as to what should be replacement tree, the appellate would like ficus. is ficus still a reasonable tree knowing what you know now that 25 years ago buff didn't know or will there be another direction? can we narrow down-trying to get everybody more comfortable and less freaked out about what the potential might be if we move forward to remove the trees. >> yes. the ficus specious is not been on our plant list since the late 1990 so it is issue we are aware of and didn't want to perpetuate. there is also mag nolias. there is a wide range of examples maybe

suitable. one is a brisban box, vertical not as wide. chinese elms are semideciduous in the winter, doesn't give year round. there are examples and i think that is something that we can work towards and again, i think there is a opportunity to also look at this street trees planted on the sidewalk, especially the missing tree on pierce and looking more closely at that cherry tree whether that tree is truly establishing or not. so, there are a number of replacement specious and ficus unfortunately on the list. magnolia are not doing good with drought but there are broad leaf evergreen specious thats are suitable. >> one final question, if i are here and the appellate listening to the

conversation what is going through my cynical meend, mine not his on the screen, what i'm cynical about is okay, they will move forward tear down the trees and we wont have the process moving quickly. how do we insure the neighborhood feels safe that the trees wont be removed and there is a bareness a long while? what is the process you recommend if we move forward approve the removal of these trees to keep those tree s in place doing their job which is to shelter the neighborhood from the buildings and before moving forward and doing what (inaudible) >> thank you commissioner. that actually gave me a point that no one mentioned

but it is because of the school site it is active school site and the use is the land use is what will do that. my understanding is pierce is closed each day for recreation and parking. green. so, it is a active site with school and liability for both the school and both the city as well so there would be a joint interest in making sure the site remains safe for the client, which is a school, children and parents coming and going and dropping their kids off. so it is not a site that is going to tolerate any lagging behind in that so that is why i think this would be a pretty buttoned up approach on the school's part and we can certainly support them in that any questions come up in the way and the process, but it is a active school site and think

it is out of necessity they will already be self-motivated to make the transition as quickly as possible. >> there are two motivations, we don't want a ficus falling on kids and we want to make sure the process is tight for the reasons you stated? >> absolutely. they want the trees replanted right away. >> can i ask the city attorney a question? it is mentioned now several times about tying in the empty tree basin with the potential removal of the 5 subject ficus trees. is that something that we can condition? >> just to clarify, the question is whether you could condition the permit on the replacement within a certain period of time after removal? >> no, no, no. it has been

mentioned that while we-while the process of potentially replacing the 5 trees which are the subject trees tonight, that we condition that on replacing a 6 empty box which sits on the street side? can we condition that or not? >> the ordinance provides that the project sponsor needs to replace 1 to 1 or pay inlieu fee. there is not an allowance for requiring additional trees. >> okay. >> if they wanted to offer to do that they could do that. you can recognize that in it decision but it wouldn't be a condition of the decision. >> so even though it seems like a good idea it is suggested by buff, it is mentioned i believe by other parties that is something we cant touch because it is outside of our ability and purview? >> that's right. >> okay, thanks. >> we have a question

from vice president lazarus. >> lost my train of thought because i wanted to go back to what you said earlier when you were trying to interpret the president question. we could condition the permit on a certain timeline? >> i believe the bureau of urban forestry said that is what they condition normally on. a period of time it is valid- >> my original question then, i thought you said is the permit good 6 months or you said something about 6 months and not sure where that fits. >> the permit is valid for 6 months. >> okay. there is a maximum 6 months window but we could potentially shorten that? >> the permit-when we issue the permit the permit can be acted on for 6 months. i think the condition language would be that the amount of time between removal and replacement within that period be as short as possible. >> okay, thank you.

>> thank you. commissioners, this matter is submitted. >> commissioner comments? >> my way of seeing this, i dont think there is a question needing to remove the trees. as unpopular that might be with certain parties. i'm not sure i heard mr. buck quite as adamant about the condition of the trees. my inclination would be to grant the appeal and condition the permit on there being minimum amont of time whatever that is between the removal and the -sonded like maybe two months was not a unreasonable time. >> commissioner lopez. >> i would support that. i guess i'm not-i don't

feel as strongly about the deadline. i think just understanding the case here. i think they are properly motivated to take care of it as soon as possible. but i would support that as well. >> is there any thought from either of you related to the selection of the trees? do we condition that buff will in their wisdom make the proper choice? is the condition-could there be a condition there be some timely discussion between the appellate or the neighborhood and buff? what is your-what are your thoughts on that, because obviously the neighborhood is very

parental over those trees and energyetic about those trees and left in the lurch like sit on the sidelines we'll take it from here, if i were one of the neighborhood people i would feel a little of discomfort but also a realist in that there may be too many chefs and that would postpone the whole problem, which actually as we heard testimony presents a real danger, a security issue and health issue to children and the neighborhood in general. any thoughts on that? >> i think it is pretty easy to say the replacement specious is the result of consultation between buff and neighborhood and the school. we do that on a fairly standard basis anyway. >> if they don't agree buff has the final decision? it sounds like there might not

be agreement. >> the city is responsible for this. >> right. >> any further thoughts with regard to the care and feeding of those trees in the initial 3 year period which is as we know the danger zone when they really need extra nurturing. do we condition- >> that is a private matter probably. >> can we condition that mr. russi or is that a private matter? >> i believe the bureau of urban forestry said that is already a condition of the permit they issue here. >> okay. great. anybody want to make a motion then? commissioner lazarus, you- >> i will grant the appeal and condition the permit on the bureau working with the permit holder to minimize the amount of time between the removal of the trees and planting

of the new ones and the replacement specious be the product of consultation between buff the school and the neighborhood with buff having the final say should they not be able to reach a consensus. >> okay, did you want to specify two months or minimum state the minimum amount of time? >> i think minimum. with everything that goes on in the world these days- >> okay. we have a motion from vice president lazarus to grant the appeal and issue the determination on the condition it be revised require that the replacement trees be installed minimum amount of time under the code and further that buff will work with the determination holder and the neighbors on the replacement specious but buff has the final decision. what is the basis of the motion?

>> (inaudible) >> okay, on the basis the trees need to be removed for safety issue jz the timeline will brin bring the parties together. on that motion, commissioner lopez. >> aye. >> president swig. >> aye. >> motion carries 3-0. the appeal is granted with those conditions. so, we are going to back to item number 4. i did send an e-mail to the appellate and did not get response so recommend we proceed with the case since we have dph. >> that is fine. >> we are not getting a presentation and did not get a brief so we'll now hear from the department of public health. mr. henry liften and deputy city attorney is representing them tonight. welcome. >> good evening commissioners.

henry liften on behalf of respondent department of public health. with me this evening are inspector jennifer (inaudible) and inspector (inaudible) i do want to mention before i cover a few points from my brief that inspector (inaudible) reached out to the appellate and if the board is interested i would allow her the opportunity to give them a update on the discussion that occurred. >> sure, please go ahead. >> thank you. >> thank you commissioners good evening. jen (inaudible) environmental health. i did call mr. alle one of the owners of koheba gift inc. and did answer and stated he is not

planning to attend the hearing and had somebody else that is attending but seemed frustrated that they were not on, but told me he would call them and make sure they got on. i provided my phone number if there were issues. i did not hear back and did not see them come on the zoom call and so i called back but he did not pick up that time and left him a message. if they needed any assistance. >> okay. thank you for that update. mr. lipten do you want to continue with your prezen sentation? >> i'll just cover a few beef points for the board. i mainly the brief that we submitted covers the key facts, but just to reiterate, this is

a flavored tobacco product case where the department observed violations of the health code on 5 separate occasions. because this ord inance was newly enacted in 2018 and also due to the pandemic the department gave several opportunities for the appellate koheba gifts to correct the deficiencies. despite these opportunities the appellate continued to sell and display flavored tobacco. also want to emphasize on two separate occasions employees of the appellate impeded inspector prado's investigation. on one occasion they asked him to step out of the store and on another occasion they stuffed a plastic bag into a white container and took the container outside the store impeding his investigation. appellate notice of appeal

offers no factual basis to overturn the hearing officer's decision. because under section 19h.4-2, subsection a, any conduct is sufficient to establish a violation of health code so any single one of those violations observed by inspector prado would consitute a first time violation under the department's rules and regulations warranting 10 day suspension which is what the hearing officer fond in this case so we respectfully request the board of appeal uphold the hearing officer's order for 10 day suspension and happy to answer any questions that the board might have. >> okay. thank you. we don't have questions at this time so move to public comment. anyone here for public comment on the item? please raise

your hand. i dont see any further public comment, so mr. lipten did you want to add anything? you do have rebuttal time but there isn't much to rebut. >> no. thank you very much. >> no. okay. commissioners this matter is submitted. >> commissioners- >> you want to cut to the chase? >> i think that there is clear evidence that the department did their job. the obstruction was also a problematic issue and the one thing i observed in the brief that want braut up is there was a allegation i believe one of the employees was selling the product on their own-on the side,

and that i believe i like to have city attorney on that. an employee if they are misbehaving themselves and selling a product regardless whether they brought it in themselves or the owner product that is still falls on the shoulders on the owner for not manageic the business and they have to take responsibility for that, correct? >> yes, i agree. if the employee is acting in the scope of employment and the ord inance provides the business is liable for the employee conduct. >> all that being said, motion to deny the appeal and as the action was- >> (inaudible) basis it was properly issued? >> right. >> so, on that motion commissioner lopez. >> aye. >> vice president lazarus. >> aye. >> motion carries 3-0 and appeal is denied.

thank you. we will move to item 6. appeal 22-041. donald vertz versus department of building inspection. 1555 oak street. appealing the issuance on may 12, 2022, to stockton sf llc, of an alteration permit (construct three accessory dwelling units per ordinance no. 162-16; remove existing hss and replace with new foundations and moment frames #1-4 and add footing for new load bearing wall and add footing at lobby/garage). permit no. 2020/02/26/5525. we will hear from the appellate first. mr. vertz, welcome. you have 7 minutes. >> good evening commissioners. this is brad hern with housing

rights committee of san francisco speaking on behalf of the appellate. so, tonight we are urging the commission the board of appeals to grant this appeal and on the basis that while there have been egregious violations of tenant rights i want to focus on the error in discretion by department of buildsing inspection, planning department and planning commission. not out of malicious intent but lies by there landlord and false fiication of information since the submission of the adu application. i want to start with dbi. on information sheet g23 includesed in the application the

landlord falsifyed two pieces of information. one related to affidavit on housing service and ongoing seismic at the property. the landlord cited a permit on information sheet g23 that was 5 years old. the permit was granted to the prior owner for seismic work is and that worked completed and signed off by dbi years ago. thecurrent owner needed to establish a false fiication of seismic work to exploit building code 34b and the admin code to allow them to unlawfully sever housing service. namely, the garage belonging to the appellate. now, dbi had they

properly investigated the history of that permit perhaps could have established there was not a investigation that we know of, and i want to move to the planning department. during the course of the review of the application, the zoning administrator had to issue a action memo on a density waver. because the landlord sought to establish the lie on seismic work and that want questioned up to this point, the zoning administrator repeated that lie in the action memo and said that seismic work was ongoing, which again allowed for the landlord to exploit the building code and admin code. then, the planning commission at this point the appellate had no choice but to file a

discretionary review. at this point, demolition had already occurred for the adu project and to dbi credit, they had cited the landlord with a notice of violation for work beyond the scope of a permit. the landlord had used a permit for water heater work to demolish the garage ined a advance of the adu. dbi cited the landlord of notice of violation for the water heater work but the water heater was never touched and is there today. that notice of violation existed during the planning commission hearing for the dr. the tenant the appellates had brought forth that information by e-mail to the planning department staff who were assigned to

the dr and the planning commissioners during the dr hearing specifically asked about notice of violation. they were unfortunately told inaccurate information, again, not to the explicit fault of the planning department staff but there was no investigation into the history of the permits. the planning department staff and dr hearing said there were no active (inaudible) it is not true. there were active nov but on a permit that was for on writing water heaters but what the landlord had done with that permit was demolish a garage in advance of adu work. the landlord in response to the citation by dbi for work beyond the scope of the permit and to restore the garage

actually went beyond the scope of the citation order by dbi floating dbi and installed perimeter foundation work and rebar that was needed for the adu. then planning commission was sincerely concerned about the severage, unlawful severage of housing service which has been unlawful in san francisco since 2006 and wanted to figure out a option to restore housing services. the best option is to grant this appeal and reset the permitting process. by doing so, it would also allow for the board's ordinance approved in december 2021 that strengthens the existing law

around housing services. this project was in the midst of review when that ordinance took effect december 2021, but there was no declaration to the appellate regarding housing services and there was-again, left the planning department and planning commission with the unreasonable expectation (inaudible) something governed by the rent ordinance. >> 30 seconds. >> thank you. at the end of the day, the landlord has mislead city agencies in particular dbi, the planning commission, planning department resulting in false information on the information sheet. the action memo and in the dr hearing and we are asking that this appeal be granted and that this permitting process if the landlord chooses to do so be reset undercurrent regulations including the housing ordinance service that wnt into effect.

>> time, thank you. >> thank you. we will now hear from the permit holder, i believe mr. william perry is here so please go aheads. you have 7 minutes. i understand you want alec to share a preez entation, is that right? you are on mute too by the way. >> my name is charles perry the engineer of record for the matter. the matter before the board arise from disspute of the appellate and owner of 1555 oak street. the lease grant two undifined parking space open access garage of 1555 oak street. appellate is the only tenant lease provides parking.

prior to construction (inaudible) appellate can park in any of the available spaces. after construction the adu in the ground level appellate will have two private parking spaces. can you please move to page 6 of the presentation? this is the-there you go. this floor plan of what the adu will be. upper left hand corner is a adu lower left corner is a rks u. upper right is adu. the lower left shows the tandem garage and building lobby. the red block is where we put in mechanical room for new water heaters for both hidronic heating system and new domestic heating for the building. the gray is the new garbage area. the colored zone in the back is the terraced area for providing

hor zauntal exposure. the owner agreed-you see the tandem parking you see the private door to the garage for the appellate new parking spaces. the owner is also agreed to request sfmta to designate a red or white zone on the front curb in front of the building at completion of construction with the understanding that this is fully at the discretion of sfmta. this is shown in further detail on page 9 of the presentation. there you go. this is where the owner is more then happy to work with mta to put in a red or white zone such that appellate can park his car there for loading and unloading. we all understand mta has their own rules and not part of the building approval process. so, thus far appellate rejected this proposal and seeking readdress from the board of appeals. summary of my understanding of his claims and owner rebuttal are shown on