>> united >> tonight and he is joined by jose lopez. @ex lemberg. commissioner trasvina and

commissioner eppler and john give in who would provide legal advise. the board legal system and i'm julie rosenberg the executive director. we'll be joined by representatives from the city departments that will be presenting before the boofrmd corey teague the za reporting planning. matthew green and sorry he will not be present. and chris balk urban forester public works urban forestry. >> board guidelines requests that be turn off our silence phones and electronics. no eating or drinking in the hearing room. the board rule of presentation, appellates, permit hold and ares respondent everrespondents 7 minutes to present and 3 for rebuttal. include comments within the periods. members not afill jayiated have thee minutes and no rebuttal. our legal assistance will give

you 30 second warning before your time is up. 4 voters are to grant an appeal if you have questions about rehearing the rules or schedule e mail staff at board of appeals. public access and participation are paramount importance to the board. sfgovtv is streaming live and have the ability to receive comment for each item on the beyond everagenda and also providing closed captioning for this meeting to watch on tv go to cable channel 78. tell be rebroadcast on friday 4 p.m. on channel 26. a link to the live stream on sfgov.org/boa. public comment in personful i have zoom. click on the zoom link and or by phone. call 699-900-6833. and enter access code: 811 4898

3476 ##. and again sfgovtv is broadcast and streaming the member and instructions on the bottom of the screen. now to block your number when call nothing dial star 67 then the phone initial lib for the public comment portion for your item to be called and dial star 9 to raise your hand. you will be brought in the hear handwriting it is your turn you may have to dial star 6 to unmute yourself. you will have 3 minutes and our legal acestant will give you a 30 second warning before your time is up there is a delay with live and what is broadcast on tv and the internet. it is important that people call nothing reduce or turn off volumes otherwise well is innerfeerns if you need assistance make a request in the chat function to the board's legal acestand or an e mail to

sfgov.org the chat function can not be used for public comment or pregnancy. we will take public comment first who are present in the room. now, we will swear in or affirm those who intends to testify. note that any member may speak without an oath under the sunshine ordinance if you testify tent and wish to have the board give it weight raise your right hand and say, i do after you have been sworn. do you swear the testimony you are about to give will be the truth and nothing but the truth? >> thank you. >> iffure participate and not speaking put your zoom speaker on mute. so we are now moving on to item 1. a special item possible adoption of resolution make findings to allow teleconference meetings under the california code. >> commissioners we need a motion for that.

>> motion to adopt. >> okay. is there public comment on the motion to adopt the resolution? i don't see any. so on this motion commissioner trasvina. >> aye. >> commissioner lemberg. >> aye >> commissionering eppler. >> aye >> president swig >> aye. >> the resolution is adopted we are on item 2 this is general public comment. this is an opportunity for anyone who would like to speak within the board's jurisdiction but that is not on tonight's calendar. is had a member who wishes to speak on an item not on the calendar? i don't see hands raised. no one here we'll move on to item 3 commissioner comments and questions. >> commissioners, any comments or questions? >> seeing none. move on. >> so we will move on to item 4. commissioners before you for

discussion are the minutes of november 30, 2022 meeting. and i adopt to let you know commissioner trasvina suggested we add languages to 5 a-d the 1863 pine street appeals and suggested language clarifies they were continued at the request of the parties. >> okay. >> so i do would need a motion. >> motion to approve as amended >> is there public comment on this item? >> raise your hand. >> i don't see public comment. so we have a motion from president swig to adopt the machines amended by commissioner tras vinasm vice president lopez. >> aye. >> commissioner trasvina. >> aye joovm commissioner lemberg. >> aye. >> commissioner eppler. that motion carries the machines are adopted.

we are moving on to item 5. this is special item presentation by chris buck urban forester from public works. mr. buck will discussion obtaining tree removal permit and it is hearing process at public works. welcome and thank you for joining us this evening. >> good evening, commissioners. thank you. urban forester with public works urban forestry. we were here before you and the idea was brought up we take a moment to talk about some of our specifics relate to tree removal and permit nothing san francisco and code provisions are and i would say tht last year it has been quiet. the board of appeals and prior to that, we were hear almost every week. i was active and busy. and i think in the next couple months we have 5 cases that are

coming before you driven by applicants not trees that public work system trying to remove the timing is great. thank you for your time and those watching at home . to begin, and of course the goal is to be detailed enough for torn try to check boxes. may be our greatest advocates feel i left something on the cutting room floor but i think tell be great intro and take questions and comments. >> so to begin with in the presentation again we are looking at the process for abtang permits from public works. relevant code provisions and the hearing process at public works. >> and the first slide i wanted to had i ever is the sort of retory cal question why remove a tree? that is what we find out at the board of appeals. where you come in. this is where public works come

in and the public as well i can't actual how many people start a process with our department and want to know if they are going to get approved or denied and i say, i don't know. why? we have a robust process in place that we need to go through and will i can't i can't read the tea leaves. with that said, this year is an out line of the typical case in reasons why trees might be removed in san francisco. street trees within the public right of wachl most common would be this we are doing proactive maintenance. referred to street tree sf. routine maintenance performed by public works or a contractor. may be emergency or storm response. we had activity on our own block across from the permit center last week on mission street. we received individual requests

from the public. through 311, various e mail addresses and also our urban forest inspectors we have 6 for city now we had 4 for the last half year. we have been dun a third of staff for the last 6 months. there are ways that tree occurrence cross our radar. another reason for removal whether it is justified may be removal due to construction related impacts. and there mooeb may be a permit press this is in the construction related. that could be someone who may be is just had tree rots in the sewer. we are telling them the tree is fine repair the sewer line and they just are looking at recourse. so well are number of reasons i want to start out with that as a broad introduction. very brief recap on san

francisco urban forest. 6 years ago we only it funding to maintain one third of the street tree and it was dropping. that was about 20,000 street trees. we were relinquishing responsibility to property ordinance. the last 10 years there has been grounds work. with adopted an urban forest plan in 2012. called for the conduction of finance study. that study made recommendations. political -- machinations and prospect e passed by 80% and the question should the city min tain all street trees the answer was, yes. so now we are maintaining 125,000 trees we'll talk about permits and trees that are

initiated from public works. and a baptist a visual again. when we got up and running we had survey of the trees in the staechl we had a priorityize across all districts to make sure everyone was touched and addressed. but had to dot most work in the neighborhoods that had both the most trees and the largest to address the greatest number of maintenance needs this is our progress in the last 5 years. we have a website that out lines the process. not as in great detail you will get this evening but good enough for applicants interested in applying or move a tree. >> slipping in the code section. san francisco has an urban ordinance referred to as article 16 of the public work's code. that is our our text. and we read it a bit we will

have a section on the planting and removal of street trees our code starts with public works the department may not cut down or remove a tree unless 30 days prior we post a notice on the tree and condition tact san francisco organizations. post notices on the tree where it is located. on that block face. and also 30 days prior post notices on the tree. here is visual i remember the moment i saw my first ever tree removal notice. when i first moved to san francisco and you know now i'm part of that process. in great detail. we put notices onistries this is polk street. we got trees out of there and planted larger growing species. we post the notices on utility poles. and so this is a spree park and

get creative if necessary to make sure they are on the trees. again we have information on our website about all the different processes. one of the exciting developments we now do so one of the fine are print items in the code says to contact interested neighborhood organizations rung out in unusual. somewhere archaic and every time our code is vet second degree we make this put this in plain language. one thing we now do is we -- post our removals that we initiated and this we are reviewing from applicants on our website every monday evermonday. so this is something up until a year or 2 ago the only way you learn about a tree real removal if you live on the block and seat orange notice on the trunk or pole. now we put all the noticeos our

website. i knowledge this came about during the pandemic. there were concerns about access. okay we are not able to get out what is public works doing. we want more transparency. it tax awhile it is manual labor we don't have this dial in the with the technology yet. but it is worth it to us. i think we anything we can do to nkdz public support and transparency is a good thing in city government this . is an example whf we now do and we post every monday we had a big coordination confusion about how do you physically post and coordinate having it start on the same 30-day? we figured out. do it every monday. so that's a great resource. i think for a lot of folks who don't need to travel across the

city they can arm chair this. you know. quarter back. key board quarter backing warriors, fire often appeal an all right of prosecute test boy e mail this is find and schedule it for a hearing. if we get a protest within 30 days we schedule for a hearing. and anyone can foil an appeal if you are a tourist from germany you are welcome to take part. society written notice has things the minimum of week we schedule for tree real move hearing. someone calls and we know tell them what that date is. put the information on our website on the public works calendar. sometimes what you might seat original posting say this tree is proposed for removal if you

have a protest this is the reason for removal it gets prosecute tested by the public now a month later we put up the notice of the removal hearing. this photo shows you that. the original was protested now let the public then and there was protestd and now going to a hearing. we do is inform anyone protest third degree and give them the hearing information this is what that looks like on our website. we had a remote hearing this morning at 10 a.m. we are still conducting hearings remote. otherwise, we are typically hear her in this room or room 400 this is where our hearings have been held for decades and i'm assuming now that things are figured out with the prop b public works treat environmental

services sanitation and streets will likely rea hybrid model as you have here. regarding appeal offul tree removal the written decision we have a public works hearing. . we have public comment. presentation by staff or applicants. a few weeks later a resulting decision that getings mailed out to all parties involved. and each resulting decision states that the decision is appealable to board of appeals. one of the other aspect in tree removal permit process for public works as of february of this year we have an amendment to our ordinance at the board of supervisors. to replace trees 120 day this is is short evened from 6 months due to the public's interest in making sure public work system replacing trees in a timely manner. the other thing the department shall plant a replacement tree

in the closest available space where wee removing a tree. when we plant tree its saves time to plant system atally across the city in groupings not a number of individual one offs. when we removed a tree we replace in the immediate fronting property. if we did not have room we did not replace it in that immediate environment. the public spoke and you in our code will require us to replacement tree the nearest site possible and this is an example behalf that looks like. sdwroo we are required as of february to maintain delayed replace am tree report. not a great year for us in terms of planting now trees. we are in the process creating the delayed tree report. and track the trees we need to

replace so we can follow our code the same require property owners. >> a bit about removing without permit should be unlawful to plant or move a street tree without a permit. and work associated with a purr permit completed in sick months. this is what that looks like a place on our website where you go if you other applicant you file here. we review and talk a bit in your comments about when do we make a decision to approve a tree for removal. we have a process a property owner schmitz permit for removal the things we mentioned early. may grant or deny with the following procedures. we require a replacement tree be

planted. this body has a lot to stake claim on we need to beef up our pents for removal without a permit in the face of construction. so when i story in the 2005 the 5 was $560 per tree. fortunately, due to various advocacies that minimum fine is now $10 thousand dollars. we beefed this up thanks to the boulevard advocates in public comment and the board of supervisors. the other thing not just a 10 thousand dollars 90 first mine issued was to a senior couple who were 80 approximate planted the tree in front of their home 40 years before murphy's law the if he ever person receive third

degree was not. a dwerm kuth cornys it was mom and pop who pleasanted the tree themselves. the challenge is that the code requires that they plant the equal size diameter measures 6 inches above grade we are explain to them why they need to plant 18 replacement street trees to come up with that. we might need to make amendments to this when it is in the construction related. perhaps that will happen. we are early in this process. we'll see where this take us. that really is for dwerp not just getting that tree out and paying i penalty you have to city much larger trees so that is a significant -- we hope deterrent from under mining our

public process. we covered this 10 thousand dollars minimum fine. and another thing i want to point out is this -- very often applicants will speak to the fact that they are replacing a tree. when there is new construction they are required pleasant a new tree this is a list of triggers that requires new trees be plant today is construction, now building, new garage or curb cut. the additional square footage. also ad us. ad you's have examples where than i can pay in lieu fee. these other different examples of project this is trig are planting. some cites may have zero real and it is leave that site with 10 new trees, which is great.

sometimes they need to pursue the removal of 3 trees and their sight will require the planting of 20. we are removing 3 and planting 20 this size are they. we know that young trees don't upon provide the same benefits as mature trees do. >> i'm near to wrap thanksgiving up a couple of other thingis want to point out is this is an image. what would be a significant can tree today. so this is norfolk pine tree a took in the tenderloin this reveals my age but i within around the city when working was just a wild idea. ure know if it was a tree i was all over it. this it is on elis tree new york folk al even point tree this tree was remove in the 2005 and no provisions against at this

time council is in the process of reviewing if removal protection should exist on treeos private property and obviously that can be a political third rail. so all the various ways you know should be every tree or by species or diameter? what should go on here? this tree was remove exclude supervisor chris daly not known as a green thumb he took res spit from jake mc goldric and said most trees would have save third degree tree in my area. the idea was significant trees is that they are within 10 feet and provide a benefit to the general enjoy am of the public right of way. our ordinance now also has the same processes this we discussed if it is a tree on private property within 10 feet of a public right-of-way.

however not every tree be this obvious there are front yard setbacks in the city. that have public right-of-way that is wide are than the sidewalk is. approximate we have, let of tree companies that call and need us to check the parcel map and say where is my property line where does your jurisdiction begin and ends? that's when we have on the bok now as of 2006. a year late for this tree. and this is what happening in 2005. i was education coordinator at friends of urban forest. telling the property owner that please don't remove this tree. shemented deliver her property to her heirs free of potential conflicts with development this . is an image what that looks like now. i said to her in 2005, if you

have i building or project the this time 10-20 years you will let this come on it is a gift to the community. and then a year later i was w other for the ft. steel and came across these photos and so that's a bit of a -- why significant trees are included in our code. so far the furtherest the sea is willing to extend in private property. and to recap, again, just big picture over all. these other general categories that come before you. trees that we are trying to remove. and trees that may be in the wave development or impacted or trees that one other category a tree that is not in great condition or shape but not in our current plan maintenance cycle and if they want to pursue

removal and replace and water it, we will considering that. those are a number of of different aspects of our tre removal permit process we included public works initiated removes and development. and or simple low private property owners managing treeos their property. look at my notes i think the one left thing i love to share before we open up to your questions or comments is this prior to street tree sf a few years ago, i don't have the data but general low the most common tree removal case would be a home whoern had to repair the sidewalk multiple times and regardless of the tree house the tree was healthy they did not care. they knew that this tree the moment that concrete set it was a matter of time before it got

damaged again. benefit street tree s footwork the city takeos that maintenance responsibility and the liability. so this we don't have a public that is motivated throughout financial individual pocket. these trees are critical city wide infrastructure. that the city should be maintaining. we are final low there. i think what you will hear in the next few years is ramping up plant and getting replace ams planted more timely and lastly would be everyone who come buffers and before you have it it is their own individual home or project. and they are planning i replacement and want our credit for this we have to remind this this is i collective impact we are not picking on them if we let everyone remove and replace over night we'lled have little can open. those other points we try to

make in our job and process at public works. be that, thanks for your patience and hopeful low i struck the right balance of detail and not too much detail. thank you. >> thank you. each commissioner would like to ask a question or have a comment. president swig is first. >> thanks. chris, thank you very much for this part of a series of orientation and get up to speed and education accept nears thank you. and my questions are directed at expectancyive on this education for commissioners here who in front of whom you have appeared as many times as before me. just some nuts and bolts questions and deeper question. significant tree is a definition of our -- do you have sometimes

we struggle i know i did. men departments where their acronyms and definitions. terms like significant tree. do you have a list that you can provide not tone but pritly and if not it is okay, of acronyms or definitions this are most often used so that when that he come up we will know the definition of a significant tree. i noted that you said that most low trees significant can trees are you pointed out on sidewalks anden enreal ways and we had somebody who wanted do a lot

adjustment included a backyard open space and a magnificent red road and almost not in the middle of the block but a good 30 to 40 feet off the off the street. and it was labeled significant tree for bade removal which was a good idea. from my point of view. it was difficult to for some especially those who wanted remove it to say, why is this more significant cannot than any other one. just an advisory to the group significant trees don't always lie on the sidewalk. sometimes they are in the middle of the block. >> 125,000 trees you take care of.

if the can open were perfect, and if mr. clique clip were here. . he would reminds us the canopy is shart of perfect and fully engaged if san francisco had a full tree canopy how many trees would san francisco have? joo remember exactly. next, commissioners. the goal is 155,000. we have a street tree census thought we had 105 we had 125,000. 20 finished ever,000 more than we knew we had. the urban forest plan calls for plant to stock the city and fill most planting cites 155,000 in the next 20 years. 20 years oog going back a number already. 155 k street trees public

right-of-way. why a mention that and -- i was reminded or hear further first time, i don't know. when a mature tree is removed it it is in the a one to one replacement. it it is a girth of the tree? and is that the way is that -- is this a constant metric because the one of the questions that we face have historically is had a mature tree is removed. we will remove it and replace with 136 inch box at that 36 inch box falls is deefficient as to the amount of environmental and other value that the mature tree brings, is that something when we hear something i in the future mature tree is removed we

should be aware that the replace am is not one to one but rather a met trick determined by the girth of the tree. >> yes, when it is not development related. i obtain clarification on this and pass it along with those acronyms. which is a great idea. which we will do. when again when a homeowner was removing a tree before, when 2 thirds used to manage their street trees. and maintain them to require some remove a dead tree and punish replacing way 20 inch diameter tree did in the sit well. so. itself in the code and, plied urn development. i have to check if it came in the february amendments it mroks

different to me. we have in the past the most common example is the garage curb cut k. removed without replace am there is no more room on the frontage we can dot appraised lost of the tree. if there is room for replacement as well. we would much rather have the tree. what we have -- understood from our code is we can't require the replacement examine that appraised value and planning a tree in the urban environment is in the project cal it is not where you have the area to the plug the trees in the ground with utility this is is the pin this i can get clarification on. there had been constraints the

way it is written in the code and a rider says written findings and often when we found it is not frakt cal to require it but development wise, absolutely. >> so. i will get clarification on that. those other previous things in the code i wish it would speak more directly to construction, plain english. plain language and something applied easy low. >> i 2 more questions. it is said you never forget your first love approximate first tree case. i remember my first, tree case. and it had to do with a tree on fulton street that had caused robing havoc for the person who

owned the tree. sidewalk, driveway. you know one thing after another and costing thousands of dollars. it was -- tree has to g. the tree did in the go. the tree was maintained. because and i learned then the importance the canopy to the law. if and we had other cases another case alsoin are richmond side street avenue where a fir or pinor large tree had grown from infancy and was now longhorning against a building but -- was -- was -- destroying

the building and sidewalk and et cetera, et cetera . so -- when is it a destruct ever tree that needs to be removed? when is i destructive tree in the a destructive tree? and -- mitigation there is mitigation surrounding it to move the sewer and move utilities, et cetera, et cetera, et cetera . >> that's right. thank you. so one thing is hatree related damage to what we call infrastructure damage typically sidewalk. sidewalk damage from tree roots raising or dispolicing sidewalk sections we put this in the acronym. swags. that we consider to be routine major maintenance. where we will go ahead and reper se this sidewalk. a mitigation we use if the

sidewalk is wide enough to expand the opening around the tree. a tree basin or well there was a fais case in hik row hickory street there was no room. it was close to the build and repeated sidewalk damage of no other mitigations left. board appeals required you to replace the tree that was a narrow sidewalk. that is an example when it is property damage and is where it gets to a more that's we don't have these defined probably on purpose. but -- property damage of foundation, structure that where you are subjecting a homeowner to increase damages. that's manage this we often said. you know what?

this is not what we call healingy and sustainable. tree may be healthy but it is not in sustainable site. wrong tree wrong place. there are a number. we do try to draught line with property damage. if we denotice a tree for removal and there is clear property damage, you know we do put on the lens the board of appeals. what is the reasonable person say had they see this? when do you expect them to do suffer on going damage? we don't make people move sue are lines and some of the other utilities but we do in our advocates echo every day is we have an applicant we ask, what are the alternatives? what other measures you have reviewed or considered to see if you work arnold this tree. what have you sdmn it is both

what is the level of damage and if it continued or mitigated once and resolved. and yes twot monterey pines on fulton. they are still strong and in good condition. i met with the homeowner a couple of times and our maintenance responsibility now. that is a good example of trees now around for awhile. that were denied but are very contentious hearing for sure. >> so, you have sat and witnessed us on this board get bounced around like a pin ball machine. and the00 autoissues that bounce us around are the law. we have a legal requirements codes. compliance issues et cetera,

et cetera . to we have the environment. without trees we don't have air without air we don't breathe. that is unhealthy. third, the public at large. upon and their feelings about the protecting the canopy or will call the canopy. which is -- i think our responsibility partial low our responsibility. to remind you have 20,000 trees behind. or the city is 20,000 trees behind and min tain the canopy back to maturity and yea, the individual homeowner or property owner who is sitting there, but i have i kill are tree outside my house or the developer says, wait a minute, i'm putting up a

7 story building and you are worry body upon 2 bloody tree sns and there are those developer shocking. the developers have don't care about that stuff. but -- what would be your with all the various things you see us having to go through while we are trying to sort 3 whether to remove a tree or not. where do you what advice would you give this commission as to where the sensitivities should be. again given dynamics with the law. environment, canopy and individual property holders? >> that's a great question . one of the things that we are aware of is when just the average property upon owner you know they seek an age in place and install a grand jury in their home and they lived there for decades not lect they just

bought the property and an among later t. is tough to park i need a garage. those are tough case but i think in that scenario, public works we -- the bureau of urban forestry our goals had you out lined. to enhance, protect and expand the urban forest. and so one of the things we often do at our bureau is say i'm a person most knowledgeable about trees. i'm going to state clear hat cannot tree statute is it healthy. what are the considerations here? we will let others make that judgment call about when to balance an owner's per received right to fulfill the max what they can fulfill with their property. it is sort of the something this is out there.

i'm no expert butt good news is we try to keep our arborist staff on. try to focus on the tree and come in with of the information about the tree itself. and let i will we have a public works hearing officer who meches recommendation for review and approval by the director of public works. the director needs to we that x. often weighing that as they review all the factors. it is easier when someone come to us with a project and it point everthe trees that are being reviewed are not in good condition. there are a lot of cases that don't come before you because you know what, they are not in good condition. we share that information the public and there is little appeal or protest. but there are going to be cases where we are balancing both the need to protect the urbeen forest with other occurrence

this are important. got neighbors have ice open what would happen. we don't want someone who thrown this out and the project was discussed but street tree removal was not contemplated those we wish we could be involved earlier in the process. so we are now, we get routeed

early on. those stick in our cross there was not out reach. we move was not contemplated and we have a few of the cases where there is a lot of out reach. coming up. so we are seeing improvement. olden days garage was approved. built you come sxout there is a tree in the driveway. what do you do we get the permit to remove to find out if that is viable. those other things i think we'll work on closely together. >> thank you. i will yield to mr. trasvina >> thank you president swig and thank you for the excellent presentation i have a lot of questions i will ask one and a quarter. the short question is when is a

what is the dwfrns a street tree and in the a street tree 10 feet away from the right-of-way that makes a difference? street treers any tre in the right of way in a developed sidewalk or it is the back of sidewalk but still in i public right-of-way. sunset. where the public right-of-way is 15 feet. 12 to 15 feet and it looks like a front yard a lot is right of we way when they developed the nishgd xu have to power blocks of sidewalk it is less expensive to pour 6 feet instead of 12 or 15. it is different block by block. street tree is within the public

right-of-way a significant tree is never a street tree it it is on private property. but within 10 feet of the right-of-way. we will add that to the abanymore list. some folks say that street tree is significant cannot this can be confusing. we have a shared responsibility to the public had and have a goal of having them informed is the information on your website in other languages and do you have any kind of staff capability or efforts to educate the public in spanish or dhooin

chinese. >> sure. great question, commissioner. we have some information in other languages we need to do more of that. public works does have a lot of interpreters. staff is always available. we have annual training in title 6 and -- you know our well verse in the that. an example where we recognized for communication and respect it was going to be necessary, was lower 24kth street we did all notices in english and spanish. same message 2 languages. we could do more of that. we have a public information officer who is full time for street tree sf temperature is a goal but not enough is in other

languages. public works guess sxoorndz tries to get information about many facet what is public works does in neighborhood commune news letters this . is something the communication department is watching. you gotta mention that. there are other avenues that public works engages over a number of different ways but strict low is it there yet? no. we should especially our most common page have them 5 or sick languages off the top >> thank you very much. >> thank you. thank you. chris. for your presentation and for all of the information and first, want to thank xhemd you and your colleagues increasing the level public transparency and accountability in the w you

do. it is extremely important and i see a lot of city departments in the doing that. or not doing that and i see and want to commend your department for affirmtive doing that when you were not required to. thank you for this. i have a couple of questions and they are minor. the first was -- does everything that retalked about does this affect trees in people's backyards as well. if so, when? backyards i joke that backyards are large low the wild west. in san francisco it is a touch of this. there are no tree related -- not going on with any city agency and i will tell that you briefly. i have been dealing with the calls for 22 years as 47s of

urban forest and the city people feel like there should be how cocaine i an agreement with my neighbor over a tree. we do have a tree dispute resolution. article 16 penalty one of the public works code tries to out line and encourage am the free dispute resolution community boards for folks with issues with tree and backyards. there are no provisions for tree in backyards tell be considered in future years through the urban planning process. thank you, that's right great and i will ask this what constitutes a tree. is there a list of species that constitute trees do hedges count? what does and does in the count as a tree. >> sure. so we do consider palms trees we

don't consider them grasses. that is cocktail parties people like to determine that on us it it is a large woody plant. many species are not listed in our list of approved species list are in fact trees. so, it would be we define in the code any large woody plant. so -- there are gray areas occasionally. and -- you know what? if we are not sure out public the interpret when we will do. we'll air on the side of calling a tree and post it and have people go throughout press to air on the side of more protections not less. large woody plant. >> awesome. thank you. >> commissioner eppler. >> thank you for the presentation and thank you for putting up with our questions.

commissioner trs vina covered 3 quarters of my question but i noticed you put up a picture of a p and those trees street trees buzz they notoriety public right-of-way is tht right way of think burglar it or how are they. >> that was the spree park and the public right-of-way is 15 or 20 feet wide well is the back of the sidewalk away from the curb they are in the right-of-way. . for those removements are they deemed by public works or the property owner and construction or how are they classified. >> in this case before nus an among, that one is a project lead boy the rec and park department. so in this case it is rec and park and the community doing a park rehab renovation project. but we -- we maintain street

trees in the sidewalk adjacent to schools and park and that can be confusing we are separate from rec and park which manages all the trees within their property. so delores p we maintain the trees and sidewalk. and then the park department handleless the trees in the park. thank you for your person pictures brought it to life. thank you for your presentation. we will move on to public comment. anyone here for public comment. go ahead. you may need to press story 6 are you here for the item.

>> yes. >> for a point of clarification, you used the paper notes tree removal on the block. you still do this or is this where one is on the line? >> okay. thank you. is there any further comment on this item in okay. i think this item is comcluded. thank you for your time. we are now moving on to item number 6. appeal 21-11 sick. doctor pritan subharwal. appealing the issue asbestos on december 15 of 21 to drr pritan subharwal of a notice of cancellation 2 building permits cansyelled due to the fail to

submit requires revisions the description of the purmet demolition, 3 story type 5 construction single family dwelling and site permit first floor in garage. new 41ent row and living, dine and comprehend third floor bathrooms and bedroom the. these are permit 201111018065 the site permit and 291902112585 the demolition permit. we'll hear from the appellate first. doctor subharwal? you have 7 minutes to address the board. welcome. >> respected president. and all the other wonderful commissioners. i [inaudible] the heard something about how far about the trees today i love trees.

>> my backyard is full of trees. i also -- love the butter notices. so i'm trying to make i butter notice raising house at 245 the last 12 years. i had support. from [inaudible] from our other mayor and from the present supervisor stefani. she has been w with me for 8 yearos that since she was an aid. [inaudible]. today it is a beautiful day i get a wonderful very wonderful e mail from my new planner

[inaudible]. may i read this thing. and that's all the problem. we have been working with him for the left 23 months wants it get the job done. the e mill read, thank you doctor subharwal i submitted proposal to him this last sunday on the fourth. on the fifth i got the report from him in the morning. it never happened before in 12 years. that is great. i have had a quick look at the revised plans. and it appear as though there are still some unresolved issues. but unfortunately, i will not have time to conduct a more

thorough review before your appeal hearing on wednesday. should the appeal board grant your request to keep the permit open, i will aim to review the plans and provide you with a feedback within the next couple weeks. what could be better? upon were he wants to work i want to work. i want to make the butter notice home. il be [inaudible] the butterfly host and the neglectar plant here. i will be prosecute voiding free plants to the whole boulevard. so they get free plants which are loved boy the butterfies

that's when we need. we need butter notices to pollinate. we need the bees to pollinate. i will provide free plants to anybody whoment its. the public service. i want to provide. i'm 85 years old. and i love my country here. and i want to do things for the whole world. i already done one thing looking at a guy who got the smoking stopped in the class rooms first time in the history of this earth. 1976. i was the professor there i was the ombudsman and professor used to motor vehicle in the class and the kids have emphysema. i made no motor vehicling in the

class room and i condition fighting no motor vehicling in the planes. when you notice the plane today you can thank you mow for this i worked and got the job done i did a lot of research on hatobacco smoke does to human beings i'm 85 i do look like an 85 guy. i do behave like an 85 guy. no. i want to stay young. and i am young because i have been playing with the butterflies when i was bofrnl we had 500 acres of land full of butterflies now my best friends the monarch is just gone on the endanger list. we have to change our habits. i'm also making a house my backyard is full of trees and oxygen. all the oxygen will be coming in

the house day and night. i live in the pollution zone. i have 10,000 cars running in front of the house when the burn than i make ash. and they gave me the heart attack. when the doctors [inaudible] they found out no cholesterol. but crystals. of ash. now they have a special hammer they have break it approximate i'm alive today. give me a chance. to continue working with the young man who wants do it. i have no complaint against the gentlemen. it is about how far to work with somebody -- to save the world. if there are -- no butterflies no pollination, no seed formation, no food for all of us. and no new plants.

. and when the green plants grow think about the great [inaudible] this took place to make the molecule for the first time. it is a chlorophyll molecule makes the food. it takes the bad air converts to food. a chlorophyll molecules makes the oxygen. we need oxygen. 50 seconds no oxygen we die. world is contaminated. with the pollution from burning coal to make the electricity the kill the butterflies and kill our hummingbirds and killed so many things i was the one who if you for the pelicans when they got rid i objected that one. i found out the eggs as they are

laid the shell breaks the babysit never. >> thank you. >> we need your help. why thank you doctor subharwal we have a question for you. >> thank you for your present anticipation. >> thank you for your presentation i -- appreciate your commitment to the butter notices and the pelicans but want to a little refocus what is at hand here which are the the cancellation of 2 permits. one dating as far as 2011. and that looks from my review to be basically a toll remodel of the property. and then in 2019 you filed for a demolition of the entire property. i guess i want to be careful with the way i ask this question

but. and i have president swig in my head saying that we did not have the benefit of receiving a broef from you in the merit so we went in the blind a bit. but what i'm seeing here based on the record that has been presented to us is this in february of 2019 you filed for a demolition for 245 marina and then did not respond to the planning department for over 2 years can you explain what happened during those 2 years? >> it was 2019 when -- the problem with the corona problem started.

roughly. i had a meeting with the planning support in the office of supervisors stefani. i had a problem. they keep telling me. modify the proposal and moist proposal. modify the proposal. do this thing. this thing. and i for 12 years i have been dog this one i did not give thumb is a project for the butterfly its should be done. so -- they kept telling me the house you are going to make should look like one of the homes on the boulevard.

i happen to know the supervisor who was seen my house and i showed the letter to the supervisor. i was told, you love your house, you build a house you design the house which is 255 marina boulevard and the next is on 245. why don't you make the same house. the [inaudible]. so i wanted to present that plan there. and i took the fafts thing and showed where all the plants will be there. the flour flowers will be there and meeting was there. i then told that -- give us -- the complete plans. wonderful. then i was talking to friend theys said do you have a letter

from them to make the whole plan? you may be making a whole plan and they may be thinking something different. i said, no. i picked up the phone and called christopher. phone check. can't do combchlg then the corona problem came and said when the problems go, way they will connect with me. i need a letter, which i never got. then i -- started working with them again. birch gotting some the e mill,

my project cancelled. no information from them. no warning. no nothing. working for so many years they have my phone number i picked up the phone and i talked to preliminary christopher. he says sorry, sir. very nice guy. i was cleaning up my desk. it has been sitting here on my table for some time. i 3 it away thinking you are not interested in the project. i said but you have my phone number. you have my e mail. if you had any interest in the project you will be contacting me that, [inaudible] there is no connection and you cancelled.

this is not right. he said yes. >>. yea. i have a follow up as well. when you received the notice of can lagz dated december 15 of 21 the letter says you can contact such and such from planning within 60 days to remedy the issue. did you attempt to rem dealt issue or. i have been remedy all the time they have been to my house they working with me and that's why they are working with me. du respond to the letter? >> yes, its here >> okay. thank you. >> because you can't be working with people on the wall. they come to my house. i showed them the whole

property. what i have already done. butt problem was different. now bring the problem. i have 3 of them there and showed them all the permits which i have and they said we have never seen this permit. never seen this permit. never seen this permit and never. then the talked to each other. may be upon he can concocted something. >> no. they wanted to take pictures of permit. okay. >> so >> commissioner lemberg. >> i think that answered the question. but so they say the whole thing everything is okay ready to go. and elizabeth was a part of the team there. she said so what do you want doctor subharwal. i said, 4 years ago i said i can

make a 2-3 years ago i can make the same house which also exists on marina at the advice of another supervisor. that's why you saw the house you said you liked the house so can i make the same house next house? she said no you can't do that one. there is a law you cannot make a similar home. i like to see the law i never seen that law. >> okay. has this how the empty since 2011 on 245 marineasm i notice the your address is 255 marina like low next door to the. >> i use both homes. >> 245 for my office.

and i use the other one to sleep there we can use both the homes. >> thank you. >> commissioner trasvina. thank you doctor assault and battery subharwal. i have a question during your presentation you mentioned i couple times that you wanted see a law you wanted information. and we, too, want information. unfortunately all we don't have anything in writing about this situation. will you testified, lot. one question i have is were we to real against you and support the cancellation, what impact would that have on you now and what how would you be presented

from starting all over once the person you referenced reviews your latest file and starts from scratch what the is difference between dog that and not canceling? are you suggesting if the project is cancelled? >> i'm saying we don't have any written basis to decide but if we were to rule to cancel the permit would you be able to start with the colleague you mentioned and start the process. gi don't have another 12 years to do the whole thing again. i worked very hard. i pen, lot of money. why should it be cancelled. when president people are ready to work with me and working with me as of monday.

this monies there is no cancellation they should not be and the permits should not be cancelled. >> thank you. >> president swig? i should have been the first to comment today. to advise. one requirements of the request we make at the board of appeals the appellate and the project sponsor provide plan and provide a document that argues their case so we can prepare. one hardships we are having here we don't have plans. we have not had the plans to prepare to support you. >> i'm sorry. i will start again. one of the requirements or major significant can requests we make

of any appellate or a participating permit holder is that they submit a documents that describes their project. that includesand identifies the issue and how we can rule in support of your direction. we don't have that, and that puts us in a significant disadvantage and puts yourself in a significant disadvantage. i have to ask this question it is something i should have been the first to ask. why were no plans submitted so we thinked review what we are talking about. >> i had no idea. >> thank you. >> thank you. >> you can be seated now we will hear from the planning

department. thank you doctor. did we have another question. >> doctor subharwal? >> you can be seated, sir. not a question for you >> thank you very much. >> i note in reviewing the materials this has been continued several times. but no record in the minutes of any of those meetings. i believe my read suggest correct you as the president can you go talk a bit about how and why. this has been continued y. rescheduled not continued. >> rescheduling outside of the public hearing process when the parties agree. this was never on the calendar. the planning department agreed to reschedule multiple times >> thank you, sorry. >> no problem. why thank you. welcome mr. teague. >> good evening. president swig.

commissioners. corey teague planning staff. we are hear before you for the peaceful cancellation of 2 permits but most specifically the alteration 201111018065. and this is for 245 marina boulevard within the rh1 district and 40x height district. has been discussd that was file in the november of 2011. 11 years ago the promitt propoedz substantial alteration to the home. taking it from 2500 square feet to sick,000 square feet. as mentioned the property was purchased in 2010 and since has been pseudovacant not being leased or used as a primary

residence. department understandses that this project is a person and important at this time appellate and appreciate his positivity and worked over the years to be helpful on the project. however, the permit has been on review for 11 years involved numerous staff including senior and supervisors aids. site visits and over all significant of staff time to work with the applicant to understand the controls and guidelines. and due to that history and the breadth of staff involved over the years i don't have every detail and nuance available for the board tonight. and honest low from briefing per speckive this has been reschedule multiple times and often when we are looking for briefs we are looking for briefs for the appellate to independent and this did not happen.

so there is in the a lot of information before you tonight i put forward the issue tonight is in the about a lot of the small detail its is the issue of inacttivity and lack of responses from the applicant over the 11 year period. because over the years the department has issued 6 notices to the applicant and numerous e mails out lying code >> reporter: and design comments and the exact issues and design responses have evolved because the applicant provided plan revisions it was more of an issue of those plan revisions were not addressing all the issues that were raise instead notices. butt key issues were first that the plans were challenging themselves. it is complicated plan and we have specific plan guidelines that were not being followed or providing the information or accuracy of information we

needed to determine how the project met the code. project was considered not consistent with the residential design guidelines or consistent with the eligible marina historic district. the project simple low does not meet the code first when is come to height. propose the roof structures are too large and contain space and those simple low can't are permitted you can't get a variance for height noncompliance. current front bay balconies at the street don't meet code and also the project's design now would need to being updated to rely on the exemption from ceqa that was issued for the project. i mentioned because the project is you in in the eligible marina historic the current version ksdz not be approved without a additional environmental review. because it is historic it needs

to be compresidentable as is it is in the compatible it would need to have environmental review or be resunrised to become compatible with the historic district. point to make is like the permit we have today and we had when we cancelled it cannot be approved. it is not just certain dregzary issues there were hard code compliance issues as well. regarding the concept and notification of potential cancellation, the foil that little everwas sent in 2017 was of the first notice that said, if these issues are not addressed we will cancel the permit. that was 2017 we did not cans temthen. and the pattern keptityerating of like response that was a response but not really addressing all the issues. anothers notice in april of 2019

covering the same issues with the same language about the issues must be addressed otherwise tell be cansying exclude decision was made to cancel the permit earlier this year. even once hapermit was cancelled we were engaged with the applicant as was mentioned we agreed for reschedulings over time to allow the appellate to continue to work with our staff on the design. and there were submittals it was similar pattern of technically smith revisions but not 1 this is addressed the goals we express in the the notice we sent to them. so, the appellate is correct. he sent an updated set of plans this monday. to the planner. the plan are said when was read in the e mail that quick look looks like it is in the meeting

when we asked for i don't have time yet to thoroughly review it. and that's the scientists where we are. but it is important to note that when we agreed to the fourth rescheduling we made it clear that was the left rescheduling we were going to punishment before one should take this to hearing that's why there was a request for another rescheduling of this and not supportive because we wanted to bring it to the board to have the issues addressed. of the permit under review off and on for 11 years with little progress made toward a code complying project and preservation guide lines. department gave ample notice to avoid cancellation. still did not receive revisions and the department position the cancellation of the permit was the appropriate action and recommend the board deny the appeal. however if you are in the

context if the boardments to -- give more information in the future and think about this we are happy to provide other documentation for a future hearing i'm available for questions y. got a couple short ones. there are plans for had structure? >> yes. are those plans in any way, shape or form compatible with the any guidelines that would make it the move ford complete the project viable? >> limited partner the plans as they exist now i think as they existed prior and submitod monday, i think they are still a ways away from being compatible. but that does not mean they want could not be resunriseed become

compatible and code compliant. it is manage this could happen the plans now are not meeting those standards. >> you know we are caught here in approximate a couple things going on for me. the upon plan were dmn 2011 that sill long time ago. a lot of stuff changed. certain belling standards changed. thulgs everthings regarding the neighborhood and the city have changed. something that might have been viable in 2011 may not number 2022 it is fair to characterize the plans submitted in 2011 trying to be used in 2020 are

not viable and the best interest of the project sponsor that the whole thing just start all over again. not all over again but really all over again so there is starting point and you can give director feedback and if there is no compliance to your feedback then there is no project? rhyme trying to satisfy as the appellate said. 85 years old. i have a 92 year old mother i understand i don't i would love them to be around 50 years from now. you know -- based on trends this probably is not going to be original.

or with a file of add voice he received the last 11 years. should the should the -- cline should the appellate be advised in his best interests to take those comments. take his plan and have them redone boy an architect and resubmit for new permit? >> thank you for that. kind of works different low for the building code and planning code the planning code is law of the day. if you filed the plans in 2011 until it is issued if the code changes you are subject to changes unless they include

grandfathering provisions. from a planning code the 2711-22 is not irrelevant van. from building code, i don't know what building code changes there have been that would affect this project there could be could have been rirms that did in the exist in 2711 i understand the appellate thing it better it keep and not file a new wrn oui are less concerned about those issues. the permit 2011 or 2022 for us the end of the day it needs to meet the code and the design and preservation guide line this is was an issue. 11 years of trying hard to get there with not a lot of progress. so i don't know that we'll would see relevant haask best for the experience we continuing is best for the city that they start

over. to be up front, you asked the appellate about what the impact would be there is a code thank that would impact them a bit. this will be an impact of the permit kanz lagz and foiling of a new permit. i'm sympathetic to the appellate. when he says what after 11 years and i'm 85 you want me to start all over but the same time i'm

hearing that clearly. and my other ear i hear, what i see a square peg cram in the a round whole and the appellate told, that square peg you can try but it will not fit in this round hole. and you are just going to waste your time. and i'm also -- sympathetic to that in he is wasting his own time trying to make the square peg in the round hole. what do we do about in the again the context of the statement question. would it be advisable because you are your -- the statutes will not allow plan to move forward with the plans in the

conscience they are even though the appellate continues to want to do that it seems. you are not able to to -- move away from compliance issues. and building and neighborhood. and all the things that in the square peg admit round hole. >> sure. and i think that's you know in a nut shell the message we have been trying to community for a time. you know how the appellate values they will time and effort is going to left to them. as a department you know we are happy to work with people.

on renovations to single family homes but have other w to do as well. and after 11 years of working on a permit and not just working but devoted significant staff time to this project. i think we have gone above and beyond in trying to bring this proposal in manage this could be aproved and after 11 years if you have not gotten there we are ready to move on. >> and if we i'm taking too long but feel it is necessary. trying to help the appellate understand. if we do not make a decision tone, and we gift appellate one

more time more time as he seems to believe you are on the edge of -- approving his plans. are we -- not hearing a message from you that these plans are simple low not going to work and we will waste your time and the appellate's time? or again. in your wisdom related that and evaluating time guilty department and the appellate's time. is it most advisable to cancel the permit, refile, with the laundry list of things, this is what will make your process go quicker. faster and get your project doneful >> i think because we did cancel it our position is is that it should be cancelled. if the appellate is still

interested in this project or some version television than i can file a new permit and go through the press and review the time. i think our position on the project and the issues have been clear. over the years. whether or not those thank everchanges can be med through the concern permit or a process here. or an operate permit i hope so but don't know. >> thank you. my imagination is in the working we did not receive a combrooef special have not seen the plans photographs of property. the picture the appellate

painted hoe wanted it to be a jiend garden with butter notices and the permits i electric atture conflicting one is a complete rerenovation and the other is a demolition. which are not really compatible. can you give us the plan what the property looks like what is going on and what is planned? theory. i can share on the over head. you have a picture from google. if i can grab my key board.

hereby is the property. which can you -- bfrment a view

there. this is marina boulevard. the left or the right? >> put your finger on? and the top one? >> thank you. and unfortunately the most concern plans were printed out mall. but i think they may get point across. this is the proposal. which i understand the demolition is condition fusing i don't think it is red light intent it is alterations. you can ask the appellate if you like about that but we are looking at the alteration is an alteration permit not new

construction permit. and that's a rendering from mirna boulevard. learn bay balconies on the sides.

from the front of i don't know what level. the floor plans are straightforward in terms of common space, bedrooms and bathrooms. fair low large. that's wanted. >> follow up question. again given the very limited amount of information and documents we were begin for this -- and i heard you say and i believe the planning department number of xhours staff time on the project.

but the permit tracking on mine is very sparse. considering the eleventh time this we are talking about over 11 years and a number of blankent rows i have never seen before. can you may be go in why so sparse as and yet and why there citizen blank entries on the permits >> permit tracking on sideline rep 7ation of the tracking system we have in the city. the primary function to indicate which departments are required review the permit bhchl they received them in hold and when they approve them. now it has a comments section and different departments use that different ways for different types of projects.

so sometimes the box will be very full of lots of notes and iterations of notice s and everything this happened over time and sometimes they will not it dependsos each department and staff person. you being have a project that has been xoeld sitting with one agency like planning for year and tell not show up in the permit tracking we are not using it for that purpose. >> that makes sense. >> vice president lopez. >> thanks. i see in the notice in of cancellation that you got a cc to michael hannah the appellate's architect.

i was koourg curious about communications you had with that representative? you know. are they clear on the shortcomings of the plan. has there been communication. >> sure. thank you. i'm not sure about this name specific low i know one changes there have been different designers over the time and the appellate themselves has been the designer or family members help thanksgiving is an issue we worked with them on to have one consistent designer to work with like a point of contact on the design issues that has been a challenge. so i don't have an exact answer that person's name. it may be that they were listed as the contact on the permit and the file with dbi and required

to notify that contact as well. >> well. one final question. based on the extent i'm familiar with the property i drove by twice today i live in the neighborhood. to say i have driven by it several,000 times would be an under statement. and i'm sensitive buzz it it is the in marina neighborhood and i like to support my neighbors. but if, does this the extent of this renovation or redevelopment does it --ingly this have to go back through the planning xhiz? because it is going to trig are all sorts of stuff?

are seeing included such as the activity on the roof. and -- did this smells like a planning commission discussion and -- does the is if so, does the appellate understand that this is only the beginning? >> thank you for that. i can't spoke for the appellate. my understanding is the project has been resunrised over time to not need to go to the planning commission. of course if a request for d r was received from a neighbor it

would need to go. we can do a staff neighborhood dr to the planning commission if there are am disagreements. my understanding is the as it is proposed, now it would not require planning review. because there are front of bays and balcony that would be eligible for i variance thatted require a variance. the height issue like i could not grant a variance for that height in the planning commission could not approve it this is code compliance issue that would have to be addressed. if planning reviewed could condition to have that removed code complying but nile understanding as proposed it would not require a planning commission hearing the challenge with these things though is

ha -- we have the project has changed overnight scombreers years. and -- is well any 311 notice i can't tell whether because are i don't have the plans. i can't tell whether the building envelope going higher. it is,iel. >> it will be required. a 311 required and and that would require significant can neighborhood disclosure that would require significant neighborhood meetings. and all the stuff that goes with 311 notices. okay. and -- does i guess i will ask in rebuttal the appellate does

he realize that the changes he made over 11 year period will trigger 311 notices which will create more challenges and moving this project forward and this it may be a fair question. may be better to go back, just to revise start all over and come up with a new set of plans, make them bullet prove to all the concern compliance issues and also the same in protecting them during a 311 notice from his neighbors? we would be subject to section 311 notice. if it were a new permit an expansion of the building envelope. so that's something this they

are should be, wir of and an issue going forward. yes. woo thank you. we move on to public comment. anyone for public comment? i don't see public comment. doctor subharwal you have 3 minutes. >> thank you for asking the 311 notice. there was no objection from the neighbors none. number 2 the information is writtening i was told the bathroom no height is needed. no extra height is needed. that's wrong information. there is no bathrooms. show mote plans i submitod suddenly. the upon only thing mr. christopher said we are just a back part but in one of the

recent meetingos zoom he said follow the 25 foot rule which was told to you which i will always follow is in the plan. i want typeset have a chance it present a new plan to this committee and find out where the problems are. now you talk about all the problems for 12 years. it was discrimination against this man. i want to come here with my preparation. do it right i like to do it elegant low christopher saying w on that one. but this is miss information. this is in the right. i have had have the information i can bring the plans here and i did in the ask for the extra height. no. nothing. everybody gets 35 feet and you

get equipment penthouse [inaudible] high. that's all we have. the height limit is not challenged. that's wrong information there is no -- problem with the side neighbor. he came to the last 311. said grit i asked him men times we will eat and work together and i have been here 30 years no objection from nobody. people have letters. to the mayor to the supervisors. that gift permit. where is all that information this is wrong. one sided information.

significant disadvantage buzz you did in the file a broef. and we did not do not have any plans to review so. other than the photos that mr. teague presented, we have nothing to go on. i'm in the extreme disadvantage i live several blocks, way and drive by your house that does in the give me knowledge about your plans. what we heard tonight is in 2011 you presented plans. since this time, you have received feedback from the planning department and we support the planning they are professional and good and i many years on the commission have never found discrimination against anybody on the planning department and i for one would call the planning department out on that discrimination is unacceptable in san francisco. and does in the fly.

so -- i want to put it rest assure you i don't believe there is discrimination against you personal low the issue is in 2011 you presented plans. and those plans have gone through many, many conversations with great lapses. today, as we sit here, if we had the plans then we would be able to review the plans and ask you specific questions about the plans that seem to be the issues. in the only we don't have the plans but weapon don't know what the issues are. other then and there we have a planning department adviing us that this process has gone through 2 many phases. too many advisors of yours

friends. families or professionals have been in involved and a lack of clarity xu would be best adviseed seek a professional architect and reapply for the permit. with the advice you received the last 11 years. this is construction advice not meant to discriminate the same i heard men time in front of this panel. do you understand that over an 11 year period regardless your plan or anybody els a lot of things change and the plans you present in the the first place are not the plans i don't have them in front. i would wage are they are not the plans that exist today. so do you understand typeset is in your best interests in fact that the planning department is

advising cancellation of the permit so than i can receive clarity to benefit you in a more constructive fashion? do you understand them? i understand that but may i answer. i just it is a really a yes, no. but i will give you a minute or 2 to answer. the answer is christopher told me to do another 311 and i did it y. today there is no plans there are plans this were put forth in 2011 and cording to your testimony and mr. teague's testimony the plans have been in

saged, adjusted, discussd and evolved but today there are no plans we on this panel can't provide you with the support this you need for you to say, go forward. nothing to do with the 311 or the process it is protecting your it is planning department can best serve you. do you understands this is in your best interest actually to cancel this permit so plus. >> so they can be clarity because there is no clarity today it is a confusing mess. >> bluntly. i submitted the plans on sunday and that is reply to them and the guys one thing on that one. so let him work. give us time to work with the

gentlemen. there are no problems. >> thank you. >> problems created before. >> thank you your time please be seated we need to move this hearing planning department time for rebuttal. thank you. >> please, sit down. >> thank you. corey towing fer planning. thank you for commentos discrim nigz no intent of that at all on this case or any other case and if i made comments you know at this hearing inaccurate i will be the first at a future hear to point those out and correct them. i'm happy to do that to that point, part of the challenge is the new plans were submitted on sxhnd have not reviewed them. the new plans the form before

above the height limit does not include the bathroom prior plans have the current ones do not. i understand the challenge you are in with the lack of information. unique nature of this. while we were not supportive of another reschedule because of all the factors we are supportive if you wanted continue this to allow briefing and just to get an opportunity to have more information and documentation and plans in front of to you have another discussion on this we have no problem with that. just considered the unique nature of this case but -- we are open and i'm available for questions y. so, you are going to bends over backward in my view, thank you, planning will ben over backwards. thank you. to offer the opportunity of a

continuous in the recommendation that would be acceptable to you to you in the planning department given the amount of time and effort resources you put forth i think this is very fair. given your flexibility and your wellingness to support the appellate and set that not precedent you do it all the time. in fairness. what would -- how much time would it take for you to review the plans and then provide those plans in a subsequent one page are, please. plus plans. to this body so we could continue had case at a later pin if my fellow commissioners agree with this graf actuality of conditionance. >> so if the ask is how long we

need to review the new plans and then provide a page brief plus i'm not sure if anything else. just claire fighting the situation or outstanding issues with the new plans, i think that could be done within a several week period. several weeks puts us at the holidays. >> january or february that is my expectation january or february. >> sure. i would assume whatever day is available in mid january. on january fourth we had an opening. that would be too ambitious because i know the week before that i will be out. stan will be out >> january 18th but a busy 4 solid cases that are going to take time. so i don't know it is up to commissioners otherwise. joy consider this planning department is really working

hard to be flexible to this appellate. by lifting that request at this point. for no for a sorry for a closure tone on this request. february it 1111 years >> submit it to the commissioners for discussion others may feel different low. >> i'm trying to for february we can put it on a date in february. >> february 8. or 22nd. >> if we go in that direction, would it be possible for the benefit if the commissioners agree and for the benefit of all of us please in your one pager to quickly identify in bullet points the things that are bones of contention that simply are

not a second time possible or significant can low difficult in this they would require a variance or significant adjustments to the plan. upon onpage double spaced the skweed a burch i don't know if you are open to a 2 or 3 page that would be okay you are getting the point not have a 20 page dissertation. >> that would not run that would be counter to the principle of denying it. >> and you want a brief from the planning department out lines issues they may have or

position? or did you want to get the appellate an opportunity. i don't know if we will get one. this is the issue prevents us from giving anything. we don't have plans we don't know what is right we don't know what is wrong. >> i do you want a 3 page broef or 12 page reset the process and give him a chance to submit one. i don't know if we will get one. this is a planning response request to planning to give us clarity on the plans and i obviously allow the appellate to agree or graes agree with planning in a rebuttal situation. he does not have to present it again or what is profit cal. we did not receive a brief.

have the appellate submit a brief and planning it respond and address the plan sns kind of resetting the process i don't know if you want to allow. why which is a rehearing request and -- i think what i would we can discuss -- but right now we are asking plan to say what is wrong with this picture. and story with planning. okay. does in the have a picture they can't respond by reviewing the picture. >> to give us direction. that is where i think it it is a -- continuation of this q and a in rebuttal and we can -- okay. >> so we are did we had another question from commissioner trasvina? i have a question for mr. teague

and i just want to bench your extraordinary low accommodating in this matter. i am frustrated by lack of progress over 11 years. the electric of documents as we have described. that are in the record that come before us. and if it is inspect your judgment you are willing to gift appellate more time to work things out i want to commend you for taking that extra additional extra steps you have expressed on behalf of the [inaudible] to make. i am separate from that i will sdhaus with our colleagues when it is submitted. separate from that and very separate is what i heard tone an allegation of discrimination. and i heard the responses. but i would like to know once a

mfbt public expressed would not call an allegation a statement is there a protocol you need to follow to allow that person to address temperature not here in your processes. i do think that should be the appellate should be given the opportunity to express what facts or whatever version of what occurred he feels constitutes dris discrimination i don't want that to be forgotten as we deliberate on this matter. whatever process you have if this can be explained to the appellate i appreciate it. >> okay. >> thank you. >> thank you. commissioners we have at hand first choice is deal directly

with the question called this is should the appeal be upheld or denoticeed allow or not the planning department to cancel the permit? the option is a contination i would like to hear from your choice the continuation track or to reach a decision tonight based on the testimony that you heard. so, can we go with the ends of the line first and w our way back. >> go ahead. >> ordinary 12 combreers this i would be in favor of making the call tonight. but for you know the develop thes of the plans on sunday, mr. teague's gracious, openness and

really the butterflies the fact there is a public interest element to the plans here that is certainly in the a feature of all home remodels, i would be open to continuation to one of the february dates. >> thank you. mr. trasvina? >> i would i -- agree with vice president lopez i would not ordinarily vote to continuance but given the planning department's wellingness and accommodation and somewhat of a path forward, i would support the your motion or a motion to continue. >> okay. commissioner? i foal i'm the one pushing for accommodations. i'm not sure congress will give

us anything more useful than we heard. i think if we if there is a motion to condition i would -- my strong preference is to put it in february because i there are a few reasons within our january calendar is very full and this has the potential don time consuming regardless of which date it is heard on. so if we have the option, which we do i prefer to have it at a meeting where we don't have, lot on the agenda. and that is my 2 cents. >> i conquer. i would general low be pushing toward resolution tonight, but i think there is the sliver of opportunity to move forward

otherwise and because the department has opened that door so graciously, we mine as well allow this process to walk through it. >> um -- i think i'm am what is the date in february potential low? 8 or 22nd. >> mr. i'm will available on 8 or 22nd. to apore again are you open? twoopnd is 22nd is fine. i will make a motion to continue to the 22 rnd request to planning to provide a short brief and plans to assist us in moving forward with resolution of the either of denying or

upholding the appeal. >> okay. so 3 page broef is find? >> sure. we have a motion. >> and have some. >> i'm sorry. commissioners have comments. >> i have a comment. i would propose an amendment to that motion. to i actually want to seat appellate's engagement woman this process and like to see him submit a brief as well. if this is amenable. >> no problem. give mr. teague, how many minutes do you need? yea. what is the length to -- to -- 3 machines 5 minutes. why we get 3 minutes each when it is continued than i have 3 minutes. brief if you have questions hoe can expand. why grit yoochlt and the only

other. the executive director has the answers to the technical questions jost other question is if we are both filing briefs is it the >> same time line >> so his brief due february second bi4:30 we will thenned in wroiting you will have an opportunity to send a 3 page brief we have to have it by february second we the sendsut information tomorrow we need to move on. okay. so -- we have a vice president lopez you wanted add something. i propose during mr. teague's initial comments seemed like there were potentially open dbi questions he was unable to speak to fully i prosecute pose that we leave it open for representative from dbi to

submit a brief as well. >> okay. if they >> appropriate. make sure we xunt that to dbi that does not have to be part of the motion. >> so. we have a motion from president swig to continue this to february 22nd. with the request the planning department provide a fleam page brief reviewing the plans and the recommendation. and in addition that brief would be due on february 16th by 4:30 p.m. and we allowing the appellate doctor subharwal to submit a brief. commissioner lopez >> aye >> trasvina. >> aye >> eppler >>

welcome back. we are on item 7 appeal 21-088 grassy grove versus the za. 145 jefferson street appealing august 18 of 21 to all right of determination the confirmation whether a cannabis museum and tour space, growing and processing paces and a gift shop with licensed cannabis dispensary a general entertainment use and whether the gift shop a licensed dispensary will be subject to the rules of planning 202.2. the required sick00 foot buffer

with cannabis retailers. the z adetermined the propoedz museum would be a use that provides entertainment and leshure to the public and meet the definition of general entertainment. and meet the definition of general entertainment. if met the retail activity in the museum and consideredk sesz row in the subject to planning requirements apply to cannabis retail for cu. this includes 600 foot buffer requirements by planning code 202.2. note on october 19th 2022 upon motion by epiletter board voted continue this to december 7 of 22 so the planning department could have time to file a late brief. commissioner lemberg? >> i need to make a disclosure i have a professional rep through my service on the board of

eureka valley neighborhood association with the appellate's desmond and riand a person social relationship i have consult with the city attorney's office and determined that i can not recuse myself and i further state will be fair and impartial. okay. thank you. a note that the attorney for the determination manager enzy said his cline does in the entend to occupy the space he did not submit i broef and will not appear to the hearing the appellates first mr. todd williams is joining us via zoom. welcome. you have 7 minutes and will share where you are time with mr. morgan. >> good evening. i'm todd williams i represent aggressivey grove in a hearing

room are desmond and rick conlow i will open up and pass to mr. morgan apologize for speaking quickly the all right of determination should be moot there is no controversy the project abandoned and staff indicated that there is in museum, no gift shop prosecute posing. the applicant indicated wanted with draw in the location and now loseed a noncannabis use. the issue with potential impact would be unwise it have this lld sustained it is unnecessary and premature. i want to prosecute void context there are equity retail cannabis application and 20 under construction and within 80 others with submitted applications. i mention this this is already i highway low competitive use the

equity rirms and other regulations the 600 foot buffer extensive bia large number willing to go through the time and expense to comply with the established process. with the issue tonight is different the use would have been a cannabis dispensary masquerading as a museum and gift shot. accessory cannabis use is not authorized in the planning code nor the office cannabis permitting process enforce all condition and recontradiction restrictions tinldz today prior that principle retail use apply but allow accessory retail to be fro from come ploying with

requirements. for manage this critical the bard of appeals should not steb a policy this access row cannabis can take place anywhere in the city while avoiding the planning code requirements that others must follow. planning staff contention the office of cannabis permitting the close the lop hole it is inaccurate the brief says the process provides imployed policy intent and access row retail considered and it is intentional legality is left to the office of can bills whether whether they can decide whether a suz legal i continuing is beyond the office of cannabis jurisdiction. the powers are limit they'd can't create new planning ruleless the office of cannabis permit regulations include hours

of operation, security requirementers what can be displayed moishes north targeted not the authority to uphold the equity program. the all right of determination is making an indirect policy decision by finaling that cannabis retail can be a use. 291 of the controls that others have to follow for the planingly code apply. and 3 the board intended a result under mining the detail scope that get adopt friday cannabis retail this letter would open an opinion dora box of hundreds approximate terrible access row cannabis retail use catharsis principle cannabis retail use being tethered a museum.

art gallery or number of use you might imagine and under cut the cannabis retail torse put the program at risk. the brief mention the the xepgs of formula retail restrictions for this use apply regardless of whether a principle or accessory use it is helpful it did snot money the board had to create a lop thel lists letter of determination. it it is i stretch to assume the board did not ban the use it

allowed uses and in the require they comply with the requirements that cannabis retail must follow you have comments submitted by stake holders of the cannabis community unanimous in support of the appeal. the considerations behind temperature i will pass to mr. morgan and say it is not necessary to make this determination at this time and create a new policy in the absence of an actual project or a direction from the board of supervisors. thank you and now i will pass to mr. martin. >> good evening. commissioners, president swig. i'm desmond morgan one of the ordinance of cb san francisco. i request thank you vote not to approve the accessory license with cannabis growing with i license dispensary it violates

the planning code section 202.2 with another retail license dispensary should not be within 600 feet of another licensed retail cannabis space. proposed license application is within 600 feet of [inaudible] san francisco. and another reason for the burden to reject it is that there is no longer a project. >> and management company not here for asking for approval. in fact, the proposed site 145 jefferson is no longer a valid option and the landlord of the property ronnie fong stated the concern location 145 jefferson street rented out to another tenant. in fact he was apol jettic to

the cannabis community for wasting our time. >> thank you that is time. >> thanks you will have more in rebuttal. we'll hear from the planning department of good evening. commissioners core teague plans department. this submit a brief here. i did think it was important in this case. because as was mentioned it was requested boy a tenant not the property owner. once this well ld was issued and paled, there was a long period of rescheduling where there was negotiation between parties. eventual low. that attentive did move on and this letter became moot. for their purposeless at this

time. however, when a request is made to the za to intercept the code and the determination is issued, this is the issued determination. it is upheld or deny thered is no provision of the code to with draw it and the principles within the letter apply which is why there is sxrn that indicates that it is in the moot. it still an interception of the code the key points here just to paraphrase the brief submitted again the request to the upon za was whether or not this museum will upon with a giftship serve as an access row dispensary what will be the principle use and wlo this accessory cannabis retail and how the code review that? and -- the determination the general entertainment use with

accessory retail and cannabis retail. with the caveat that the code permit this is as an accessory use in terms of defined as one the code expressly stated that it cannot be approved as an accessory use until or unless the office of cannabis creates anarc sesz real permit and associated controlless. so even though this all right determined, yes. it is gift shop could be permitted and classified as an accessory use urn the code does in the allow anyone to use that information going forward informs and until the office of cannabis created a permit and the associated controls. the board of supervisors if they

prohibit it they could have just prohibit it. that would have been simple the fact that there is a special section added to the code that says accessory cannabis can't happen unless this happens the unless is the birier to that happening. no reason to put that in the code in the future if the office of cannabis takes this step there a world there being be accessory cannabis retail. that stuff has not been taken. my understanding not on the horizon. and the issues they would consider for access row cannabis retail would be all the issues raised here. and more. and i think than i are aware of the those issues and any controls that the office of cannabis put on an accessory permit would acknowledge that. additionally, if there is concern, with stake holders or

elected officials about the dynamic in the code now, again the office of cannabis is not working on thisarc sesz real permit now and the planning codes could be amended clarify this to prohibit it, to make other clarifications that the board supervisors felt were necessary. so with that and without getting all the other code mechinations that were in the brief to explain why the determination was made, i think the determination was accurate. relative to interpretation of the code. not my intent or role to been this as a policy perspective is to look how the code language adoptd and how it would be intermittented and obviously if there are policy occurrence at the office of cannabis on how to create and develop regulations

or the board of prierzs they have the ability to take action on that. i'm available for requests the request is you deny the appeal and uphold the determination, thank you y. president swig. so. the request is what is the point given is no project. and so that is -- you can i will 3 all my questions out there you answer them. innocents everisn't this a commentary on an abstract case study there is in project. and is this proper protocol to abstract what i consider abstract case study there is no

project to community a reading and vulnerables in statutes and not argue it should be communicated but better recommunicated not to a hearing but rather a departmental community or a motion by the board of supervisors. and the -- the -- starches as written. i will do my bestment whether there is a point. they were a project and the code question.

in terms of irrelevant veterans this attentive at this location is not interested does in the money the question is in the relevant in general. could be used by other i think there sill point to it. again the point is limited in the sense that unless and until the office of cannabis creates the restrictions you can't do it anyway. and in terms of i think it is in some way its is abstract in the sense no one is proposing to use this now it is not in the sense it is not something this could be relevant in the future.

>> is is this the proper protocol to communicate a flaw or a vulnerability in the concern legislation -- to to the that department. control of cannabis retail or through a hearing come through a letter that goes to the board of supervisors for a separate hearing in >> i can't speak if the proper protocol but there is in question that like this letter the office of cannabis is aware of it. people are aware of it who are

interested. we would definitely whatever the outcome of this is we will be having conversations on this. i don't think there will be a lack of awareness from stake holers as to the outcome and they will be aware and take action. >> i will give way to mr. [inaudible] >> thank you earlier where you were extraordinary low accommodate nothing this case none of the partiesment this. and that the department seems rigid that they have to have it or the stele has to have it and my concern is as you stated this is general guidance that could be used boy other businesses. it would seem to me there is little advantage to centering

and a deal of risk given that it seems to be saying the planning code 10 tw. as long as you put a museum on top it is okay. exclude rational apply to a restriction of there is. i don't know if there is a restriction about a can lips shop next door to a school employed would a museum attachod top of a museum and gift shop would would that be allowed because it was a -- will subordinate use? >> 2 questions there. i want to clarify in terms ofment to move forward. the department's position at the time the determination issued the parties were enengaged than iment today ouz that once paled. it is not in my hands.

it it is instead board of appeal's hands the question before the board is not this moot it is -- was it the determination correct or an error or abuse of discretion. my understanding this is not an out at this point to say this does not matter determination will be that the issue was correct or wasn't. that will create president. question will be a said either way. i think that is more of dynamic opposed the departmentmenting this to be answered and nobody is for this project anymore. second question. is hard to say because it is the tw part wagz and the one part is unanswered. it it is true the rubric of the planning code is that if accessory uses are not subject to controls to the principle use

unless called out in the code. by that logic, and that was the concern raised, this is a lop hole around other restrictions. said that, it says the office of cannabis would have to develop a per mist and regulations and they would be aware of that and they could if they apply the same controls to the accessory uses. that they do for are required in the principle uses hard to say in the future that's hathat would lead to because the office of cannabis has not taken that step. if this makes sense. >> thank you. >> my question is somewhat similar but different. my understanding of letters of dprmination they apply to one specific project and this project is the project this is

being presented. and in this case this museum that obviously is no long are happening. if the letter of determination were permitted be upheld, in place, is it true that anymoring person applying for an accessory cannabis use would have to apply for a letter of determination seeking the same authorization? >> sure. thank you. i understand how that is confusion. a lot of times the impetus for the need to intercept the planning code is a proposed project. and sometimes the questions are so unique to the project the answers apply to that project. sometimes the questions asked and this is the case here the request is to interpret prosecute visions of the code. on one hand and also electric at our proposed 1 and what land use

would it be temperature is 2 parts. so you are right that the first part of the determination was this use as you proposed general entertainment. and depending on the nature of other uses that come before me might not be the use they are the question about access row cannabis was comfortable everuniversal about the interpretation of the code provision and once that is interpreted lod or issued interpretation it is the same thing a written issued interpretation of the code section or sections and, ploy those the same temperature is both in the situation. and i upon understand how this it is confusing but -- i think that is the concern of the appellates the general entertainment bid for the museum is less is motor interception interpretation as hay relate it

cannabis retail. >> okay. the second per of your all right in the determination it putings the different conscience had a new project valid to go through. to -- accomplish that. i don't know what the question was. i done answer the other question men this would relate to the what you were saying. to be clear if smnlted to come forward in the 40 and prosecute pose the use they would not need a new letter that is voluntary when people need that or interpretation in writing. ro did is not an a permit it is interception of the code that is tall is. they could they would not be required do this.

>> but then, the first part of the all right of determine nigz i gots part that permit today to be a general entertainment use, that was very specifically made based on the plans submitted. >> correct >> that was the per that was specific to their proposal. buzz that was asking this is when we want to do in detail what land use would we be. >> but if somebody proposed a new cannabis museum at the cliff house, they would have to go through that process to make sure they were an entertainment general entertainment use in as opposed they would not automatically fall under our plans are similar enough to the within that was proposed at the

warso ours now is general entertainment. >> that i can submit the application and make the argument you are correct this when it come to access row controls, it it is a case boy case. determination the venn buzz the way we define and regulate accessory use in planning with objective and subjective controls on worn hand it can't be more than a third of the area of the space. we can measure that. the other hand continual says has to be subordinate to the principle use what does this snowboard we have rules we use for that. but every case can be a little different you are correct that analysis would be needed for any other project. and they could request an lod to get the answer to the analysis in writing and make it maleable but would not be required dod we could do that through the permit

application review. >> thank you. >> thank you i'm fwlod you got to the definition that's what i want to ask about. we have the one third rowel and that's a ceiling for what institutes access reuse or what were you cease to be access row and become a more of a primary use. we don't have a floor for what constitutes an access row. i guess what i'm trying to figure out the subjective side we talk about whether this is promote or subordinate to the other use. how do we measure that there is a strategy case that economically the this use is the gift shop and the manufacturing facility even though small in square footage is not subordinate to the rest of the uses.

that was part of the analysis thwack we went through it it is case by case and different types of uses the proirm or principal and access row the relationships between the use. the where the use is located within the primary use there are ways to electric at the is something subor nat or not there is no one way to do this. you may have seen, the original proposal came in with the original lod we are initial feedback was of that this was not would not apply they submit aid supplemental that refined and took specific actions to help ensure the way designd and operated would being sub board nay you could not access the gift shop and retail without purchase to go in the museum.

oorn third is i mack not a beginnerful say you have a light manufacturing business a 300,000 square foot build and within00,000 to be access row office this is, lot of space for a 200,000 mafrg facility that play on the cam. but does not guarantee you will be incidental to the principle use that's why the determination system this a general entertainment use or an accessory use forget the

cannabis nature of it. i will point out a cannabis dispensary is supposed to have a lobby space regardless of whether here or not n. a way despite the fact the gift shop set become from the door is not irregular from a regular cannabis dispense easier. seems like this is 2 tier pricing scheme for a dispensary. >> commissioner lopez. yea. upon the follow on to that are you do you take in account you know i find it hard to believe if you know an accident like this did not have financial

projections or records of they may be showing to their investors or lendsers which would give you sense of how much than i are relying on different sources of revenue is that a part of the analysis. >> well is nothing in the code that director ares nothing to be include friday that analysis. so i would not want to say it could in the be. typically that is not a factor this is included. ref now could be challenging but buzz itself is in the an actual operating business and sometimes when we see proposals there are financial situations and issues this have not been addressed or finalized yet t. is challenging. irrelevant when we are talking about is trying to find land use we are looking at form and

function of the use opposed financials behind it. i would not want to excloud the possibility of that being snout relevant to that analysis. i don't recall that being a factor. if we brackett the use prong i find compelling that it has a back door kicked open. and you know it is not in my mind not helpful for the appellates that in the code. without seemingly without

without you know mitigation and the code but -- part of your analysis do you look at you know like the legislative history. the -- the conversations may be draft revisions. to try to get a sense for the board intent with in terms of -- at the time of draftingly. are you looking at whether 204303 was an being. if it was in line with the spirit of the legislative and -- if that was intentional back door left open.

>> sure. yes. there are times when i'm curious about the legislative intent. and more recent canning helpful we have vo of hearing do you meanation that is a possibility and how much i resthaefrp or rely on other staff and conversations with them about their experience throughout legislative press is case by case but that is something that can be looked into. that is usually something more helpful when there is absolute ambigutey and you need to understand the intent buzz there is no clear intent expressed in the code. but on some occasions it seems like there men a drafting error or oversight that research helpful. in this case was that manage this was locked at with respect

to 204? >> sure, so this case i don't believe that i watched the hearings or anything. i'm relied on our staff for our cannabis related staff who enengaged in this. and don't believe we went to this level of research because of nature of the language that was in the code. >> thank you. commissioner lemberg. why no. >> sorry you popped up. >> president swig. i'm wrestling with something it is i heard case by days basis phrase repeated many times during the testimony so far. and the argument would be that you know these the projects or

any project, are all different and evaluated case by case basis. and which would lead to the find that this all right of determination should be dismissed because everything should be look the at case by case and then, i look at the and say although, yes, things should be looked at case by case but if tht press of this case, where it was moving forward, suddenly this big opportunity arose to see the back door in the legislation that somebody could hop through. that this all right of determination provides a wonderful access row and tool to

hammer that door closed so that therefore limiting the risk the legislation is exexploited because the back door was open. help me. i doll my bechlt to me the way i view this letter there are 3 parts to the determinations. one was defining the use proposed general entertainment. swon is the prosecute pose the gift shop and dispensary accessory. is does it meet the definition and then third is can cannabis retail be access row and not subject to the controls apply to principle cannabis retail. and it seems like the board

would have the ability to really either affirm them all or change the determination on any of them. and not change all of them. may agree it is general entertainment and meets accessory no we disagree and we think cannabis retail is subject to the other buffer controls and everything that would be the interpretation of the code. or it being be a determination that it is general combament but not accessory. not incidental and the board's opinion and will -- and then i think there could be. the question specific low asked it make a determination about if the accessory kevin anderson bills would be subject to controls. the board need to take a position on that. to me those other 3 issues and

again, the determination i made can provide an answer and at this point the board heads to determine if you affirm those 3 determinations or choose to make alternative determinations on any of those. >> and facility up question, i no one but you know should we think in terms of the future. simple it present to think of the future that this will somebody will rubber stamp no rubber stamp. if upon mimic this same concept and place it somewhere else and then tell come become to us and we remember that we denied your all right of determination and in our realation wisdom of saying, electric it did not apply because there was no project. that in fact we should have probably made the decision to --

uphold your all right because here come the issue again and asked it find on something we could have determined >> that is hard to say. this is am an interesting case. no matter what the determination is, really, nothing can help for a project like this unless until the office of cannabis creates the permit and controls. it it is all kind of temrally moot in a sense that -- no matter what the outcome this letter nobody can do anything until the office of cap bills takes that action. i think whatever the determination is here all the relevant stake hold and departments will be aware and if anyone is interesting in taking action they have the opportunity

to try to work on that. >> i will with hold from providing my opinion until submitted i have a question and can it is split with you and mr. give ner this is regarding mootness. in the appellate's brief they argued that the will appeal sell moot it is with drawn. my understanding that all rights of determination condition be with drawn and the way we could over turn this is if we find error or abuse on your part in making the being determination is that correct? >> if request an all right you can with draw it before it is

issued. witness it is issued it is not an approval not like a permit. it it is an issued determination by the zoning add administrator. and that was the case here. it was issued and it was appealed. at this point it is issued before the booshd there is no prosecute vision of the code to with dru an issued. i can issue a new one with ape different decision if there was new facts and information. in terms of with drawing it i'm not aware of a mechanism to do that once it has been issued and paled. i agree and you state today correctly. >> thank you.

time for public comment y. wonder. welcome >> good evening. happy holidays. i'm ron conlow. i have 3 minutes i thought you were a party. i am i'm both. >> right if you are a party you can't speak during public comment. how much time do we have left 3 minute in rebuttal but you can't speak during public comment. thank you. >> is there public comment for this matter raise your hand. >> okay i don't see any public comment. we will move on to rebuttal mr. williams i don't know how you want to portion your time dument mr. conlow to speak.

>> yea. ray give me 30 seconds i will see the rest of the time i will give i the gather my thoughts >> thank you. joy think the board and i appreciate the comment and i appreciate mr. teague'sness specials the board is right to tread light leave. and the future applicants will have the [inaudible] if it is upheld. or try to rely on it. as mr. teague conceded there was in the an examination of history the main point it guess too far. especially this light of the fact the project has been boonldzed if the door to access we cannabis use is opened if and when the occ created a permit process the lod should have said that but it doesn't. it waited to finding no 600 rule applies. this use would have been 125

feet from seaweed. and equity >> reporter:s. mentioned the oyc permit process on the next to last page of a 7 page lod. it guess too far and way in issues that are not right frankly in light of fact that the occ has not created air permit not clear the use required purchase of a museum ticket. even so what is keeping happening the museum from charging a nickel to get in. am we said in our broef i was informed this the lod request was with drawn later it was an attempt to with draw and mr. teagues explained once issued

that does not happen. with this i will let mr. conlow take over >> real quick so, since 2018 the office of cannabis issued 22 equity permits since 2018 and we are part of eureka sky issued the first permit and seaweed the number 16 permit and to date now there are another 30 some businesses that are in construction and there is probably around 180 some applicants whether a blenl of delivery, cultivators. in lod like this we would open up a pandora's box. >> so president the one thing you shared your first comment was process. so we did try to with draw tht

this pers, plyd and rodney fong broken a bit. jr you asked about restrictions around schooling and financing they did not take in consideration the financialsing they didn't use the square footage. >> that's time. >> thank you. your time is up. >> we will now >> sorry about that. >> we'll hear from planning you have 3 minutes. hello corey teague planning department of planning code 307 says the za shall respond it requests for determinations and interpretations of the code in writing. you know the fact that the office of cannabis you know am this will lod answered the questions asked what i'm

required to do when someone pays a fee and asked for this. i don't take position on the policy aspect of it or the process aspect. the fact it can't be with drawn if there was a press for it to be with drawn it would have been and we would not be here. those other factless of the situation. um the question that well lod specific and the requestors understood that the project could in the move forward unless office of cannabis took action. if the request was not a request to come peculiar and tell them bh they knew the office of cannabis has not issued this permit you can't do it. and so that is why i don't think it was an over reach and had conversations before how this is a technical question went through the route to request the interpretation from the zoning

administrator and technical response was provided that is observe you and am it it is isn't board's hands to determine if the determinations were the correct determinations or incorrect. i'm available for questions you may have. commissioner emlemberg. we can't grit author of this ordinance. but i will ask you this question. and specific low in regard to the portion of the all right of determine that exempts this use from why du in your authority take that extra step to include this in the all right of determination when i think the appellate makes a point it irrelevant would not have been necessary it would have been subject to the occ regulations that have not been created.

>> the request that i received specific low asked if the access row cannabis use would be subject to the buffer controls. >> that's required the analysis that lead to the answer of, no. no under the planning code but potentially yes under office of cannabis code fist they ever do get adopted which was the answer was. >> thank you. >> thank you. i don't see questions. commission this merit is submit and theed standards of review is error or abuse of discretion. commissioners like to start. i will start. this is a tricky one. ultimately this come down it a policy issue. and we are not a policy make

body. we can make express our opinions on things. we and express when we are doing but i think the issue that in the appellate and their and others who submitted comment on the issue have is with section 203 suba sub3 which in my view unfortunately, pret unambiguously created the exception to permit cannabis retail accessory uses. you know, i wish i didn't think that way and i continuing is in the good policy. but ultmitt low this code section exists and the za had the responsibility and duty to interpret that code section and

i just don't see a way around the fact that, that code section permits cannabis retail use. i don't see a way around it and love to see a way around it. and you know ultimately if the original determination holder had not closed that question we may not be face thanksgiving issue today the fact is as mr. teague expressed the everthey did and it is done. and this all right has been issued. and -- we are held to the error of use of discretion standards and there it is nothing on the record to suggest to mow that mr. teague abused his discretion or regard would i be willing to take this tot board of supervisors and say, this say policy problem? yea. i would. i don't think based on what has been presented we can we can

grab this appeal. unfortunately. that's my i will pass. thanks. >> thank you. president swig. i would argue we can grant the appeal. and that we can grant the appeal in part because it is as the all right of determination says based on specific specific information which no longer exists. it is describing a determination bia use. a fact specific inquirying and this does not -- as clearly state fd it is not going to happen. on the process part. on the substance, i am i am -- very concerned thatted if this is an all right of determination

that can be widely use today can be to void a lot of other restrictions. can you have for example, a gun store if and put a museum on say, well we have the nice guns in the storm that are tourists can take home. or -- can you turn -- a liquor store to a museum for liquor and say we have this little both everbooth for liquor. or an electronically to the coast we have the gifts you can take based on the coast of san francisco. i think that it gets to a lot of -- it is an unwieldy weapon through no faust anybody here can be used in other circumstances and we don't have a case or controversy in front

frvs pus we can grant because the all right of determination the facts in which the all right is base side no longer existent. did the writer of the all right error or abuse the are privilege sore by writing the letter. thot when we are talking about. well, where is the error of abecause. would you read mroedz for mr. trasvina. i heard the error of, buz standard i then and there was not the first time the all right

was issued this is reissue apps of the letter an interested party was not informed orb as the letter described. i could we could argue about the substantive matters here about whether -- attaching putting museum on top of a store allows it to be a -- related modern use we argue over the substance. i further argue overnight process. and say that if this is a letter that will be wide low used in other circumstances perhaps the department errored boy not ouied low enough seeking interested parties it is clear tonight there are more the letter affects many more parties than were a part of the discussion.

earlier. >> that would being my error. >>y understand you other than following the rowels for prowsing the letter regardless of how oui find on that peoples you greet that the code does specific low create the concept of an accessory cannabis use. question is to me the thing i'm struggling with whether this is an accessory use or not. that is where i think there is the lever to find. abuse of discretion on this. i'm sure that that use and exist. and i look forward to the office of cannabis telling what yous

that is and what it you know how it should be regulated. but i don't want to wait on that process with this door as open as the is. i also think that you know perhaps you know one can argue by drafting that accessory use as such it is clear to intend that the we have 2 over limited partnering authorities here the office of cannabis and planning and the planning department was signalled should defer to the office of cannabis in this circumstance. so that's where i am now. >> i'm in line with mr. eppler i think i made my position on the 4 corners of the code clear. i think that back door is open. i don't see an abuse discretion

there i think that looking at the incidental use prong of this, if you think about it common sense wise my day job i'm a business lawyer and you know -- operate in venture and investments and merge and acquisitions and i see a lot of investment opportunity for my clients and myself. i seen a lot of cannabis business investment opportunities i can't think of a single museum business pitch may be it is not my kinds. business and social circles men we are not artsy enough the flurry of the permits before for the license something will say

it is lucrative. how much do we look at how much the folks are relyoth different revenue sources. it does you know i think i'm not surety list of pig is the right analogy. it does suggest that the opportunity for having a front you know for a dispensary is such an open possibility. of here in my mind we have the restrictions on hours and we got the 30% number that is clear. you know in my mind i think that that incidental accessory use prong would have to be much more

rebust low addressed in my mind if something were a museum with the accessory use i'm thinking you know a single with you with a number of limited number of single use -- moement momento product this is might be available not you know00 automiddle of the ground floor. the central focus of the business. tuolumne i think there is a base for an abuse of discretion based on that prong. i said it is unfortunate for you knowfects who take the policy

position you know limited if understand to have the concerns about the proximateimity it schools and protecting the businesses of folk who is have gone through the process properly. then it is an unfortunate become door lop whole. there are grounds to finds an erroror abecause of discretion and i think the accessory use prong is where i would point to. >> i want to respond it a couple of things i want to respond top something commissioner trasvina said which it is again about mootness.

i just i didn't firm low believe and i will be willing to bet the city attorney would become mow up we have to make the determination based on the status of the all right of determine nigz as of the date it was issued in august >> august of 21 and august 18th was the reissue date. and -- that -- you know the fact that things have changed in the latch 18 among system true but i don't we are not hearing an appeal of it based on facts we are hearing the all right ever determination on august 18 of 2021. upon the second thing i greet with vice president lopez we could -- i think found the

loophole. that we could find on behalf of we could find error on the first prong of the all right of determination. my concern i don't think tell if i can the prospect the appellates are here for which is the exempting from office of cannabis controls the 600 foot buffer. if we were to over turn i don't think tell solve the problems here. and i think the part is the third prong of the determination. that it was exempt over turn thanksgiving first part would not solve this problem or feks

the policy issue. that's, yea. eye opinion the writer did their j.w. they other than everwere asked to make an all right they did it in the context of what was appropriate at that moment and we are not a legislative body we don't make policy when we are asked to do dp they error or, because their privilege in writing that letter. and at that moment at that time they determined this was the appropriate direction according to their view. and they did not air evererror or abuse they did their job.

it is another department's responsible to do their job this is the office of cannabis not us in the the planingly department office of cannabis they do their job in finding an opportunity for the office of cannabis to deal with specialing that was missing it is legislation i think they did this served a tremendous purpose. let me tell you how we have done this body has had all rights of determination. about 7 or 8 years ago we had the series of issues about grand mother units. and we saw people getting kicked out abuseively. and this body wrote an all right of determination to the board of supervisors hey. folkers getting kicked out of

their long-term housing because they are. and it it is abusive. we would like to call to your attention and create policy. we were right egg all right of tomorrow everdetermination and abuse an end -- in the dike. okay and we sent that letter. there it is now the adu. am and so this are letter is an advisory that is does the job for the planning doesn't dog their job and not error or abuse. now up to the cannabis office and the board of supervisors to do their job not for us. to start figuring out what you know what things should be one way or another that is somebody

else's job this is about error or abuse. thank you. mr. eppler. just a respond to that president swig i don't think we are saying mr. teague did in the do his j.w. we perhaps see there may have been an error in the interpretation of the code. i have a question we have presented to us and we agree there were 3 prongs of determination in this letter. are we -- we can't blue line anything i imagine in redetermine things but are we allowed rid line and strike what we don't like or take the all right and vote on the whole of the letter? prosecute >> as the zoning administrator said you can make determinations on the each the prongs.

some of the and perhaps the third determination might turn on how you decide the first 2. you can take them one at a time or all together. you could over turn based on finding 1 prong invalid.

the point of how the 3 determine

agdzs work together or don't. and regardless of where you lands, i'm hearing clear from commissioner eppler in lopez that you are foinding concern about it is in the accessory. the second per of it. and -- i think well is a path there that works elgoodnight low to address all the issues. seems people are concerned if you electric here, the first question was -- describing the mull so many is it retail and the access row gift shop dispensary in it. and the second question is the botch described dispensary subject to these controls. can i zone out a little.

so -- to get to thefully of determinations buzz i did determine it was accessory this question of is it subject to the other controls? have a specific answer in the abscessary context. you have time. as proposed this will be a principle condition bills use and subject at this time controls of the buffers and et cetera. that is a path forward this addresses all those issues and occurrence it seems. in a way that does in the leave anything on the table and answers the -- thank you this is time. i wanted clarify that it is

help. and this takes the question of okay. your time is up >> vice president lopez du want to ask a question? so far -- mr. connolly. >> i will share that i'm concur and agree with everything corey shared. there are levers and triggers with the decision this are not being locked at fair low. if you separate them i think you will see that -- they are broken. and if there is if i have time i will give it become it corey. >> men i will jump in the time are goes. but i would add i think if i restate when corey is -- was

describing which is if you were to find that number one not satisfied you would not reach a number 2 because the gift shop would not questions of law fight second question would be off the table if this is when mr. teague articulates i concur. >> thank you. commissioners become to the deliberations. anybody else? anybody have a motion? i will make a motion that deny the appeal based on the fact the planning did in the error or abuse in the issuance of the all right of determination. >> with the motion from president swig to deny and

upheld the letter the z, did not error or abuse discretion on that motion vice president lopez. >> neigh. >> commissioner trasvina >> no >> commissioner lemberg. >> no. >> commissioner eppler y. no j. this motion fails do we have another motion on the issue table uphold the appeal on the bases the za error in the determination that was an access row use. a motion from commissioner eppler to grant the appeal and over turn the all right of determination base the za error in the determining the gift shop for the case was an accessory use >> lopez >> aye >> trasvina >> aye >> lemberg. >> aye

>> president swig >> aye. that carries and well od is over turned. thank you. >> we -- are now moving on item 8. a special item discussion and possible action on september 8 of 22 the san francisco municipal transportation agency sfmta advised the burden tell discontinue practice of having you listen to taxi permit decisions. reconsidering of this decision and explaining the reasons why the board of appeals believed the sfmta should allow taxi appeals to are heard by the board and factors considered when deciding the types of case. and so president swig, we received an all right from the sfmta on december fifth of 22. and that might change the

outcome. this letter is on the website but we have representatives from sfmta here if you like to hear from them. first? >> i this is i like to mr. lopez to carry the ball on this. it is his passion bind it behind it my view we took our position and decide whether we affirm or positions it would not hurt to go on the record. but i like mr. lopez to carry ball on this. >> thank you. yea. i would like to open with remarks i think out of respect for our gets with mta and their time we had a long hearing i would definitely yield the floor to them if than i want to make statements before we deliberate.

why welcome, kate is here the director of taxi division. du want to address the board? >> yes. can you hear mow? >> yes. >> great. thank you. thank you, board president swig and commissioners i'm kate director of taxi mobility service for thes sfmta and thank you for making time for mow to address you. i did want it let you know after your meeting on november 16th i did bring the message back to the sfmta and in light of comment, this we heard the this meeting, sfmta decided to take a step back, reset the process. and therefore sent the letter to the board of appeals about this. and about allowing more time for

more collaboration between the 2 bodies and at the board level. and so. i'd like to if present follow up with director rosenberg and stet follow up meetings or connect in early 2023 on this matter and to continue to have the discussion. on this matter. >> okay. thanks. vice president lopez? thank you so much for stopping boy our meeting and i will spoke for myself encouraged by your word and it is letter and i think taking a step become to assess this is promote.

i think turning to my fellow commissioners -- i think i think we have a decent sense base on the conversation we started on the 16th i think we have a decent sense of when we the message we would like to send to the mta's board. and so i think while i like i said i'm encouraged by the pause. i see no reason to -- wait until we have that contact and communication in early of 23. for us to start getting our thoughts and a draft letter. and if everyone thank yous it is a good course of action in my minds, i see it broken down in

to 2 kind of themes. or points one is -- the question of whether the mta taking on the hearings and moving them away from the board of appeals whether that is appropriate. and then there is a separate prong or point about if this were to take place, what learnings or issues this we have seen come before us in the most recent hearings. i saw not to project forward on the agenda the report you know about theville um of cases from the mta saw an up tick in this fiscal year. i would focus on those cases.

and the points that i would suggest to the board to talks take in consideration if than i move forward with their original plan, i wouldmentor suggest this a couple of considerations be taken in minds within what framework for hearings is decide upon. whether it is going back at this time previous plan of going to the inspect hearing receives or another hearing structure that you know we have not seen or contemplayed. i do think that elements of estoppel or a recurring theme in the cases we saw elements of a

public interest in this type of enforcement weight against the injuries that are you know to be phased by the appellates. that kinds of beens of interests. is another consideration that i think should be weighed. in the kauszs going forward regardless whether or not the boa is the body looking at the future appeals to recap. should this happen? and on that, i would suggest this the issues in questions raised about the independence of hearing receives within mta the questions related will to

reconsiderations of previously issue findings. questions related communication from the mta and council to independent hearing officers. i think all those together you know contribute to things that you know i think are reasonable member of the public you know men lead to question whether those inspect hearing officer processing are independent in the make allegations on that question but i being that the boa as a truly inspect body outside of mta you know, pointed boy the board and mayor is the type of body that would has a

grirt potential of -- -- approximate surviving that type of scrutiny. so that's the first, prejudice and the 2 -- like i said, if it does in the work considering estoppel and balancing the interests of the interests of enforce am versus the injuries suffered by appellate system 2 points we suggest should be considered if they sdoid to move forward that was a mouthful but that's what i provost. skwo i will i agree with everything you say and i would move forward with a letter with everything you say. andive -- and i very appreciative mta's consideration of our thoughts points of view and

and -- spoken word recommendations and i irrelevant appreciate that they have come become tonight and in writing acknowledge and recognize should be further diawilling and we would seek on the behalf of the board i am assuming that you would welcome there invitation to have a dialogue. in the meantime, i would write the letter with everything you say expressing the first photograph or appreciation in the fashion i described and in the left photograph paragraph if necessary with the town to further providing diawilling the members of the board will be available for that. that's my thoughts. i answer number to add i agree

entirely with vice president lopez's thorough analysis and president swig's commendation i have questions about the press of how things like this work. is this everything that vice president lopez said on the referred is that submitted to you julie? who would write a letter. >> we can go a couple ways vice president lopez could write or sends or i'm happy to have a draft or working with him and we bring it become before the next board middle easting and adopted. that would take time unless we get it by friday. because we have a post everything. which it is pretty tight >> when we done things like this, the approximationate one on the board being this case mr. lopez, would offer his thoughts

to the executive director the executive director craft a letter and first give it to the individual providing the initial dialogue and then based on mr. lopez in this case, his affirmation and acceptance of the letter this letter would be exposed us for our review and recommendation for send happening j. would the letter frupresident swig. >> yes. on behalf of >> correct not from mead on behalf of of the board of appealless. >> i can -- draft we have public comment but i can you know draft something and sends it to vice president lopez. >> he was asking fer process i'm expressing what we have done in the past. on the january fourth meeting >>. w. weave have public comment. is there. i >> one other point they believe

should be added to the discussion that is the current state to the public. i understand there is information saying we are no longer the accomplice for appealless. i think there should be i way joint low or by us or the why one. our bodies individual low to state to clarify that at the present time the appropriate place for appeals is the board of appeals >> we can update the website >> as a result of that letter is it now appropriate to remove that disclaimer >> yes. >> yes. >> we are not open for business. we are open. >> open sign >> reopen. >> great. >> saying we are open for business in the taking it off. >> thank you. >> so far. one more thing a good point and i wanted clarify i think the

mean accomplice where this change needs to happen on determinations by the mta that could result in that person going appealing that decision. but obviously we have the power to update our website i want to make sure you heard this and concurse. >> i raise my hand hopeful low you see. yes this is directortoryin again and thank you, yes , i did hear and you concur and there are no penning pels but if there were to be an appeal a remindser that the first step in the press is for the mutual hearing officer at the mta to hear it we will make it clear that at this point that there is still is once again the ability to appeal the

hearing officer's decision to the board of appealless. and we also did send out a notice today to the taxi industry and have afternoon e mill out reach list we let the industry know via our e mail out reach list of this matter and we post today on our web page as well, that has occurred. thank you. why >> thank you. we will move on to public comment. we will limit to 2 minutes. so --y wool hear first from dirk phone number ending 1405. go ahead. >> i want to make sure that public access the meeting between the to boards public that there is sunshine variant not smokey room or free booze.

are you finished? well i will the affirmation when you meet your meeting in public. >> this is not a become and forth that has yet to be determined if than i will be public meetings. why thank you. >> try to get transparency on the tree problem and my question was not answered either. i think that the reasonable request can be made the board members. to decide that. okay. thank you for your comments. >> are you finished? >> i [inaudible] cutting me off you have time you were not feek everspeak please. go ahead. >> i when i have the answer i'm finished.

this is in the a question and answer time i'm happy to talk to you after the hash hearing now is your time to address the commission with your comments. i have done this thank you. >> thank you. >> we am hear from america grouper. go ahead. i'm sorry. yea. good evening president swig i'm mark san francisco taxi worker, lines. happy to see that the mta taken a step back and hope it is a signal nay are ready to move course on this. i'm concerned that they may try it apply unreasonable conditions. in 20 then, a memorand up of understanding to the board to

establish the board's jurisdiction. the mt, wanted take away rights that others come before and endure among the right of a party for hearing under the mou the grounds for reversalure error or abuse of discretion. the public will appeal under the mou only permit holders the right of the board modify the decision you can only affirm reverse or revamp the [inaudible]. the right of member of the public to have testimony and submissions in determinations the rit of a party to request a rehearing mou restrictions on types of appealless. decision regarding wheel chair ramp taxi not appealed. board

will am i hope that does in the happen if it does don't accept you electric jurisdiction. in 2013 jurisdiction on a taxi not only projectod a vote of 2-2. the charter prosecute vision issue and you have an opportunity to decide if it has merit asking the taxi permit holders have the same rights >> thank you julie. thanks for the diligence required to emerse yourselves in the (inaudible) details of our taxi industry regulatory mess. of course that is why you get paid the big bucks, i think $75 a meeting plus sometimes

free parking. without (inaudible) taxi (inaudible) face a shame process (inaudible) whereby the agency can harvest permits by creating arbitrary capricious regulations we cannot comply. prior hearings we described various unfair or illegal practices engaged in by the agency and city attorney (inaudible) specifically the year 1988 taxi medallion applicants sworn to drive a taxi cab was magically changed to never-ending driver requirement which also is both very dangerous to public safety and violated a federal disability law. another major disappointment is that the agency and city attorney are ignoring the 9 circuit appeal court agreement in the slum

case the parties agreeded to a strategy involving compensation whether then permit (inaudible) medallion holders. numerous permit holders have expressed to me their gratitude to your board-for his actions. no doubt you will write a letter. thank you. >> thank you. we'll hear from (inaudible) >> can you hear me? >> yes, welcome. >> thank you. my name is (inaudible) long time member of the taxi industry. i like to thank you for discussing this matter again, it means a lot to us in the taxi industry. it seems to me the case of medallion holders you heard on november 16 have enough evidence to show that the so called ethical firewall the mta bragged about has

already been jumped over. that alone makes it very difficult to trust the mta when it comes to taxi permit appeals. and i think that reason alone taxi permit appeals should be heard by this board. also, the mta record says they took jurisdiction over taxies makes it very difficult to have any trust in them at all. the moment they got armed with power given by the controversial passage of prop a of 2007, they approved a pilot medallion program who sell (inaudible) turning taxi industry into cash cow. the taxi industry is paying a dear price for that supervisor peskin is the author of prop a of 2007. he understand the impact it has had on

the taxi industry. in addition to the letter to mta i ask you to write a letter to supervisor peskin as well urging him to amend prop a guaranteeing due process rights to appeal to his board of appeals. i hope you will consider that. that is all i have to say tonight, thank you for listening and happy holidays. >> thank you. happy holidays to you as well. we'll hear from the caller who number ends in 3250. please go ahead. 3250. you may need to press star 6 to unmute. yes, go ahead, please. you have 2 minutes. >> can you laer hear me? >> yes. >> my name is marry mcguire a taxi driver and medallion holder. i want to thank you for getting involved and writing the letter to the am rks ta. i like to address the

december 5 memorandum from jeffrey tumlin to your board. the first paragraph he refers to his agency of the taxi permit decision to be heard by your board as informal practice. so, my colleagues and i have long felt our appeal rights are codified in the city charter, so to consistently refer to that is a informal al practice makes me and my colleagues uncomfortable rchlt the words make us feel the policy can be changed or discontinued any time or for any reason. and also director tumlin talks about taking a step back and resetting the process. i don't understand that. is that like hitting the reset button? pausing and hitting play again so we are back where we started? today's memo to the industry the department speaks of having robust board it board

conversations so i do hope that that conversation clarifys some of the issues. just going to be a casual relationship? i think commissioner swig referred to that last time and said i had no idea we had a casual relationship. is this is a casual relationship that could end any time or a relationship that is secure and long-lasting? once again, thank you very much for your participation in this matter and writing the letter. it means a lot to us because we have been ignored by everybody for so long. thank you once again. >> thank you. we'll hear from berry toronto. please go ahead mr. toronto. you are muted. >> thank you for allowing me to

speak. i want to thank the board of appeals commissioners for taking the time to deal with this important issue. previously i was in favor of these type of revocations. i said previously, the condition have changed. with the onset of uber and lyft, if they want to talk about following the transportation code they themselves fail to follow the transportation code, not enforcing the existing laws at the time against uber and lyft. whether it was not their fault or not, the fact that there is hypocrisy involved that these people who revocations you may see dealing with, they need to be able to sell their medallions and now you can't sell them. not only that, as a long time driver i don't have access to the airport just as much as the k medallions don't have access to the

airport. you force these older drivers who want to drive or be out on the street endangering themselves when the streets are as dangerous they have ever been if not more dangerous so i'm very much concerned with the conditions changed that there has a little more leeway and has to be a independent body to look at the different circumstances that lead to the revocation and the ability to let them keep the medallion for those who want to drive a cab have access to medallion whether it is medallion that is able to work the airport or medallion that can only work the city 11 or 12 hours a shift. i am paying a lot of money for the use of the cab and medallion and barely making a living now and i can't work all 5 to 7 days because of the danger of the streets of san francisco and not a chance to take breaks or have the opportunity to work the airport. thank you very much for your time and happy holidays.

>> thank you. happy holidays. any further public comment for the item? please raise your hand. i don't see anything further, so this matter submitted and i believe mr. gibner has some comments. >> just following up on the discussion about process before public comment. one option that commissions often take in situations like this is to assign one member of the body to prepare a letter and authorize that member to send the letter on behalf of the body. you could do that tonight which means the letter wouldn't necessarily come back to the board for another hearing. and commissioner lopez could send the letter. alternatively you could ask a commission to prepare the letter and bring back for your consideration and potential wordsmithing. that is your call just wanted to lay out the two options on the

table. >> any comment on mr. gibner's thoughts or recommendations? i for one would-i don't to make it a joint wordsmithing game, but i would like to see the letter before it goes out, because i want to make sure that our heresay here in supporting mr. lopez's point of view is reflected in the way my minds eye is seeing it and i recommend we all have different minds eyes and it is prudent to see the letter before it went out and it is great to go under lopez's name. it would be a wonderful thing since it is his passion that brought it to us. >> what if i agree to leave out

emojis? >> i have confidence in vice president lopez to represent the views expressed here, but i prefer the letter to come back in part because as the stakeholders have spoken tonight, they would like to see the letter, they think the letter should go to other members of the public and san francisco. that may or may not be able to be accomplished by a single letter going out but if it comes back before us we have the benefit of public comment at that time. >> i concur with commissioner truvena and i want to add, i surprised myself tonight with something that happened, so i have full confidence in vice president lopez to do this, but what i learned today is that the 5 of us together

make a pretty good team. i certainly would be honored to contribute in some small way, even if vice president lopez does most of the writer. >> we should speak in unity and make that public demonstration of unity on this. >> i agree. i think it's also in keeping with the spirit of some of the points we'll make about public hearing and public--to the fact of these cases and the way that they have been administered the last several years. i agree. >> i guess we would need a motion from somebody to direct the executive director

and vice president to draft a letter to the sfmta covering the issues identified by the vice president and which would be considered by the board on january 4, 2023. >> make a motion. >> pardon ? >> i make that motion. >> okay. we have a motion from president swig that i just said. i will not repeat it because we need to get moving. on that motion [roll call] that motion carries 5-0. thank you. >> thank you for your hard work tonight. it was very constructive on all counts. >> we do have the annual report. >> we do have the annual report. that's right. >> the work is not done. >> i thought i read it already and consumed it; and thank you. item 9 is the board consideration of its annual report for fiscal year

22. as you know the charter requires all boards and commissions to issue annual report and gives the public a opportunity to see what we have done. commissioner contacted me in advance of the meeting and suggested a series of non substantive technical amendments which i'll cover as i go through the report and i'm just going to highlight a few points in the report. let's go to page 4. number of meetings and hours. this -the number of meetings stayed consistent as well as the hours even though or appeal volume is down. on average from fiscal year 17-22 the board had average of 29 meetings a year and spend average 89 hours a year. >> remembering we were mostly online with

significant technical glitchs every meeting so- >> that is true. >> there is a reason for that. >> that is absolutely true. okay. moving to page 8. looking at the appeal volume. it is below the 10 year average of 164 appeals per fiscal year so it is down the appeal volume. changes in appeal volume year to year could be attributed to variety of causes, fluctuations in the economy, new legislation that limits appeals. but usually a lot of times it is just related to the function of permit issuance, so that is also a factor to consider. and we'll move to page 12. i thought this was a interesting fact. if you look that table and thank you president swig recommended we include comparative tables thin report and thought that was a good idea, and if you especially dbi

and planning historically heard a higher number of cases. last year 82 percent of the cases were from of land use issues and this year only 63 percent. it fluctates. we had the same amount compared to last year in the tree cases rchlt we had increase in the wireless box permit cases. you see this in fiscal year 22, 10 percent, last year 1 percent, and couple eryooz years before you see how high it was. >> the jurisdiction over these cases were changed. >> right. we have the ordinance was-articleing 25 was changed to limit the type of cases that could be appealed. moving along to page 18. just shows gives a snapshot of basically 63 percent

of appeals were denied by vote. 22 percent of appeals granted with conditions. 9 percent were over-turned all together by the board. appeals granted so the underlying department decision was overturned and then 6 percent denied by default. we have been pretty consistent with that over the years. the same kind of pattern. it seems a little higher the 63 percent denial rate. we had historically had more appeals granted with conditions. and then let me see--let's move on quickly page 19 as is usual every year most rehearing request and jurisdiction requests are denied and that isn't surprising given the standards. page 20, geographic distribution is very consistent year after year. primarily the north appeals-filed by people in the northeast

quadrant. that is a area the city has more money i think. people appealing building projects. let me see, moving along. the performance measures on page 21. i just wanted to clarify a difference between measure 1 and measure 2. this was raised by commissioner-on the top measure 1 i say the board decided 82 appeals. measure 2 i said total 84 decisions issued. the-the decisions for the 82 in measure 1 were made on the hearing date and what usually-under our procedures we issue a written decision, 13 days after that date if we don't receive a rehearing request. measure 2 is measuring when the written decision goes out. there is a-it looks like it is there is discrepancy and it is wrong and

said 82 here and 84 here, but under measure 2 there is some appeals decided in fiscal year 21 but the notice of decision issued in fiscal year 22. that is explaining the discrepancy, but i thought commissioner tras vinia had a good suggestion, moving footnote to the body. measure 1 fiscal year 22 target is decide 70 percent of the cases within 75 days of filing and that is a new target this year because last year and the previous 10 years basically the target was 60 percent. we are just trying to alwaystrive to be better so increased the percentage in the target. we didn't meet the target but we will keep trying. we would have met the targal if it was last year metric. i thought that was a good suggestion. also under measure 2 he thought instead saying how often awritten decisions are issued say the percentage of

notice of decisions or written decisions are issued. i thought that was a good suggestion. that is one of his. and then--move on. getting to the budget --the information i believe in the report on pages 24 and 25 is information i received from the controller office but it is confusing. i agree. it is accurate to some extent, after commissioner trasvinia raised this he thought it could be changed and i consulted with him and my lee ozonfrom the controller office and had a proposed revision i e-mailed you today. alec can you show that on the screen? replacing page 24 and page 25

with-if you could go the other way. basically just simplifying the table on page 24 not talking about carry-forward, not talking about the continuing. this is really the true--this is more simple and understandable, but can we see the next page 25? this really summarizes the budget and basically our revenues our expenditures we had a short-fail fall and that was covered by the general fund so i propose that we adopt those changes. thank you commissioner trasvina. moving to page 26. the color version, there are boxes that are colored in blue and they shouldn't be colored in blue. we only need to highlight the change in the surcharge so he recommended removing

the colored boxes. moving on-all most done. moving on to page 29 the litigation report. the case 1900 briants street llc versus city county san francisco, 2 in brackets he suggested this put into a footnote because the lawsuit for number 2 was filed in fiscal year 23, so i think that is more accurate and makes sense. he recommended that. and, also finally on page 30, you will notice that when the information was cut and pasted into this report it was missing three words at the very end. basically we need to add the words, the city is-the last sentence on the page, the city is monitoring the case and will revisit its status. thank you for your diligent careful review commissioner trasvina and if any of the other commissioners have

comments or like changes or have questions-- >> just advisory. face value of the numbers are not always the story. one of the comparisons that julie brought was the number of appeals where we found for the appellate and upheld the appeal but it really has to do with the mix of the types of hearings that we are having. for example, if it is a dic hearing and we might say, we are upholding the appeal and issuing the permit and so that it includes a opaque superator between the two properties or something. in fact,

the permit moves forward, there is just something that we've conditioned the issuance of the permit on. but in deed, we are upholding-not denying the appeal, we are upholding the issue but issuing the permit that might be a miner tweak. we are not shooting people down. >> there is no judgment for that information. >> yeah. it is something it isn't always black and white. mr. lopez. >> one comment, one question. do we have anywhere for permit volume? on an annual basis? i feel like i would think that- >> we dont get that until we ask the departments to provide that to the controller office in spring time and

so-i guess we could get the final numbers for 20- >> prior years? >> uh-huh. is that something you would like? >> i think that would be helpful. my sns is it should be positively correlated with the number of hearings we have but- >> you want that for this report or-because i think it is more helpful-there was historical comparison. >> right. >> or moving forward? >> i think moving forward is the suggestion i would make and take the point it wouldn't be available necessarily for the instant report but- >> the correlation and percentage of permits appealed. >> right. this isn't relate d to the report but it makes me-different somewhat unrelated baseline question. what's the

process for members of the public or someone considering an appeal? what's the basis or the process for them to-if someone has a question, hey, how is the boa ruled on something like this before? how do people figure that out? >> well, we can direct them to cases. everything is posted online. we have memory so sometimes i have like e-mailed linked to people of prior cases. we can search also on the sales force to see what kind of case and how they ruled. we will not do all their research for them, we can just direct them, but usually i'll probably send them 5 links and say here is a example of 5 recent cases and how the commissioners ruled. >> yeah. separate from the report, but i'm wondering if many we could beef up some of the info that we make

available on the website on stuff like that. just maybe even some of the more common appeals that we hear just so that if someone is considering it and they don't maybe have the where with all or access to call up julia and alec that there is a place on the website for people to see like-here is recent cases for the thing i'm considering. just a idea. >> people want to talk to a live person, so they reach out to us all the time and we are very responsive. but, i mean-i'm open to your suggestion. all our cases are posted, all the agendas are posted. >> i'm working on a historical thing for the new website. >> cool. more an aside. thanks. >> did you want the team have information about the

likelihood of their success or-what? >> likelihood of success, sense of what people presented before that has been compelling or what type of information would be helpful. >> right. everything is posted online. all the agendas. when people ask me the cases i send link to the videos and supporting document jz they can read the briefs. >> yeah. i think that's great. glad we do that. i think there's an aspect that is a little bit like manual in a way that i think we might benefit from just having-it could also decrease on the inbounds you all get to cobble that stuff together every time. >> i mean, i guess if

someone has a question we answer and provide the best information we can, but i am not sure what you are envisioning like a (inaudible) choose a brief and--people have to have their reasons for the appeal and have to do their own research and diligence not our role to do that, but we are happy to provide them with outcomes. >> yeah. definitely not suggesting that we do research for people. i think it's-we have been presented even in these graphs here is the different types of appeals we get most frequently organized in this categories. even dpw buckets. i think like when i go to the website, i don't see that and so i think there is probably room to noodle on that. like what might be present in a way

that-because if you are just clicking through prior meetings without obviously talking to you all, but if you are clicking through past agendas, it isn't always clear from the agenda what was discussed. >> it is helpful if you clarify what information you think would be helpful to someone going on the website. what exactly do you think they should see that would be helpful to them. >> yeah. i'll think about it more. >> i think each appeal has its own merit and each person filing an appeal has their own concerns so they all have their own life in a sense. it is hard to capture that element. >> they are going to want to go ahead with the appeal regardless. they will not look at statistics and say 60/40. >> it is not-(inaudible)

compelling it is like here is a few cases that have been decided before. here is a few deck cases that have been decided before and we are not go toog hold their hand through- >> that makes sense. these were the tree cases heard in fiscal year 22, if you want to look at them. that makes sense. and they can do their research at that point. >> yeah, not suggesting we hold people hands through their argument but think the way that-it is all the information is there. >> that makes sense. it is easy to tree cases in fiscal year 22 and have a link and they can start going through. >> i also think when people file an appeal they are like how do i file an appeal. it is archaic and confusing sometimes for people to understand the process but we try to make it best as possible to give them the information to guide them

through the process through phone calls and e-mails and things like that to give them the best information to give them the journey through this appeal process. >> i appreciate that. i appreciate- >> good suggestion and we'll look into that. if you have more thoughts you said you wanted to they think think about it. >> we can talk offline. >> are you look frg a faq section? >> maybe. i think-i do think like you-we build up a sense for like a rhythm and things that frequently come up in these different types of cases, and unless someone is really speaking to the staff closely or doing a ton of independent historical research like i think it is hard-clearly we get

folks who when they walk in here the first time they have ever been at a boa proceedings or hearing and think we may benefit from more efficient process even if folks had a sense for here's a handful of deck cases decided in the last fiscal year and the guy who didn't submit a brief didn't go well for him. but just to collect that information or who knows, maybe nobody used it and not worth updating, but something to consider. >> we have there new website so good to start to take your suggestions and put them in place and have the public opinion as well would be great as well. >> if you to look at the website you can look and provide feedback. it is brand new and there is wrinkles that need to be ironed out. and we

are limited-i think it is better then the old website, but i also think they really try to limit-they say you are supposed to try to address to a 5 grader which is hard. i mean t is annoying but on the other hand i understand they don't want so much (inaudible) >> i think jose is on to something. in my 5th grade way of thinking, i think a list of faq's would be adviseable and as simple as why file a brief and the answer is to properly prepare all participants to engage in a fair hearing and if you want to link to a brief, great, but-or what is a typical tree hearing? i'm not

going through it right now. and with links to samples of those types of hearings. alec and julie get all the faq every day and sure they can come up with their top 10 of faq and we can provide answers and that's very helpful on a website so i think you-if you want to link to a couple cases, right not? >> file a brief or something to that effect should be the first faq. >> it is no-brainer and we tell them as well but people- >> i will put it in bold, please file brief. >> we tell them that too. especially the appellates if they want the permit overturned ofer changed this is their opportunity to tell you. >> i think it could-it

might worth to give it a shot. it could cut down on these repetitive questions i'm sure you all get. it could probably lead to more prepared appellates. maybe cuts down on these hours--the first we had today, that went long- >> right, do you know how man y hours alec spoke to him on the phone? those people are not reachable. >> let's hold on a second. people dont plan to either file an appeal or be appealed against, so we have to take people where they start and come from, which is they are not experts at this, they are not familiar with the ligo, we had the benefit of a lot of hearings and you all had a lot of history on this so the point is good that we should assume that if it is 5 grade level english that is stand

in the election materials, ultimately the work we do up front will help both the people who come before us and help in your job and smooth things for you to have to answer perhaps fewer questions and of course you are still open. i know the hour is late but i want to thank you for the time and you took on my questions and suggestions and edits on the annual report. i have been through a lot of annual reports over the years and i know they are difficult in terms of trying to provide information, but also be within the guidelines of a particular time period so i appreciate all your work on that as we- >> okay. >> continue on this- >> thank you. with respect to the website i encourage you to look at the website because there is a lot of information on there, but people like to talk to a live person. that is our experience, but we do provide a lot of information and we have been adviceed we dont want to provide too much information because it is just a wall. but i do agree a bank of cases might help.

a bank link of cases, here are past 10 tree cases, but i would appreciate if you do review the website and provide me with your feedback. our experience has been--we often times don't have sophisticated people. they don't want to navigate a website. they don't understand standard of review. they don't understand--alec does a phenomenal job talking to the people and with ingentleman this eerfbening it is too much. spent hours and hours. he was calling him all the time-(inaudible) >> i do have fans. i do, yes. the (inaudible) >> we shouldn't talk about that, but my point in this statement is that we are actually giving quite a bit of time more then i think other city agencies do

individually and we respond right away, so--i'm not trying to be defense just asking believe look at the website, if you have suggestions we are happy to take them. and i think the idea of a bank is a good one. because that could help people to look at briefs and look at videos. >> i second the brief bank idea. i will not spend more time on it. i apologize not having done the super deep dive into the report that commissioner trasvinue did before him but i did want to make a suggestion in the litigation section. i think my concern is about consistency and regarding case numbers. i think they should either all have case numbers or none of them should have case numbers but currently it is not consistent. i don't-i think if

people want to look-my inclination would be to say people want to look up the websites they can look them up on their own. i think it should be consistent either way. p >> okay. thank you. good suggestion. so, for this particular report would you want to amend it to remove case numbers? if we don't have them, we have to find them. >> i think i would remove them. >> okay. we'll move the case numbers. >> any comment? >> no, i found that it was a really interesting dive into the last fiscal year and presented a lot of information i thought was useful for a new members, soi assume i was looking at it with my public eyes opposed to my board member eyes so found it very illuminating. thank

you. >> i like to express our thanks on behalf of the board of appeals for your efforts and putting together such a concise report. digging out all of the information, making it readable and understandable and your continuing effort to make us look good, make the board of appeals look good through proper reporting and that of course builds faith from the public. and also the board of supervise visor jz mayor know, they, she made good choices in our appointments. i also like like to express my appreciation to my fellow commissioners for taking the time to read the report, because that is a (inaudible) to julie and your comments which were all phenomenal are very important to making that very good report even better and my

experience is not always does every commissioner read these reports at all, so it is a high complement and great recognition to julie for her efforts that you take the time to read the report and give her your fine commentary. thank you very much julie and commissioners. >> thank you for everyone's feedback. we would need a motion to adopt the report as amened by commissioner trasvina and commissioner lumburg. >> motion to adopt the annual report with recommendations made by commissioner lumburg and trasvina. >> okay. on that motion- [roll call] >> that motion carries 5-0 and the report is adopted. thank you so much. >> can i say good night? >> yes, you can say good night. >> good night. thank

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francisco planning hearing for thursday, december 8, 2022. comments to speak are available by calling 415-655-0001, access code: 2499 108 6654