president rick sweig will be the presiding officer tonight and he is joined by commissioner alex lundberg. commissioner john trevena and commissioner j.r. eppler, vice president jose lopez is absent this evening. also present is deputy city attorney jen huber, who will provide the board with any needed legal advice at the controls is the board's legal assistant, alec. and i'm julie rosenberg, the board's executive director. we will also be joined by representatives from the city departments that will be presenting before the board this evening. later, we expect corey

teague, the zoning administrator, present is tina tam, the deputy zoning administrator. both are representing the planning department. we also have matthew green, chief building excuse me , deputy director of inspection services, now with dbi and we they will be present representing the departments, the board meeting guidelines are as follows. the board requests that you turn off or silence all phones and other electronic devices so they will not disturb the proceedings. no eating or drinking in the hearing room. the board's rules of presentation are as follows. appellants permit holders and department respondents each are given seven minutes to present their case and three minutes for rebuttal. people affiliated with these parties must include their comments within these 7 or 3 minute periods. members of the public are not affiliated with. the parties have up to three minutes each to address the board and no rebuttal time may be limited to two minutes if the agenda is long or if there are a large number of speakers. mr. long our legal system will give you a verbal warning 30s before your time is up for votes are required to grant an appeal or

to modify a permit or determination. if you have questions about requesting a rehearing, the board rules or hearing schedules, please email board staff at board of appeals at. org. now public access and participation are paramount importance to the board as if gov't tv is broadcasting and streaming this hearing live and we will have the ability to receive public comment for each item on today's agenda. as if gov tv is also providing closed captioning for this meeting to watch the hearing on tv go to s of gov tv cable channel 78. please note that it will be rebroadcast on fridays at 4 p.m. on channel 26. a link to the live stream is found on the home page of our website at npr.org. forward slash boa. now public comment can be provided in three ways. one in person, two via zoom. go to our website, click on hearings, and then click on the zoom link three by telephone call 1669 906 833 and enter webinar id eight 4141 7866 at 11. and again, as gov tv is broadcasting and streaming the phone number and access instructions across the bottom of the screen, if you're

watching the live stream or broadcast to block your phone number when calling in first all star six seven, then the phone number. listen for the public comment portion for your item to be called and dial star nine, which is the equivalent of raising your hand so that we know you want to speak. you will be brought into the hearing when it is your turn, you may have to dial star six to unmute yourself. you will have 2 to 3 minutes depending on the length of the agenda and volume of speakers. our legal assistant will provide you with a verbal warning 30s before your time is up, please note that there is a delay between the live proceedings and what is broadcast and live streamed on tv and the internet. therefore, it is very important that people calling in, reduce or turn out the volume on their tvs or computers. otherwise there is interference with the meeting. if any of the participants or attendees on zoom need a disability accommodation or technical assistance, you can make a request in the chat function to the board's legal assistant or send an email to board of appeals at borg. now the chat function cannot be used to provide public comment or opinions. please note that we will take public comment first

from those members of the public who are physically present in the hearing room. now we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without taking an oath pursuant to their rights under the sunshine ordinance. if you intend to testify at any of tonight's proceedings and wish to have the board give your testimony evidentiary weight, raise your right hand and say i do. after you've been sworn in or affirmed, do you swear or affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth? okay. thank you. if you participant and you are not speaking, please put your zoom speaker on mute. so, commissioners, we do have one housekeeping item. the parties for item six. this is appeal number 20 dash 036 at 2861 and 2865. san bruno avenue would like this matter continued to august 2nd, so we would need a motion and a vote and all the parties are available august 2nd. yes, they requested that. do i have a motion so moved to continue it to august 2nd? okay

is there any public comment on this motion to continue this item? i don't see any. so on that motion, commissioner trevino, commissioner eppler, i present. sweig so that motion carries 4 to 0, and that matters continue to august 2nd. so we present i do note that we have a very long agenda and we've received a lot of public comment for some of the items. did you want to limit public comment to two minutes? yes, i think that's a good idea. and depending on the amount of public comment that we have for any one item that might be, let's say over 20 people in the queue or in public, we may reduce that to one minute in the interest of letting everybody comment, but not in the interest of not keeping us here until 2:00 in the morning. okay and the public here till 2:00 in the morning. okay thank you. so we are now moving on to item number one, which is general public comment. this is an opportunity for anyone who'd like to speak on a matter within the board's

jurisdiction, but that is not on tonight's calendar. is there anyone here for general public comment on zoom? please raise your hand. general public comment. i don't see anybody. so we're going to move on to item number two, commissioner comments and questions. commissioners. any comments or questions? seeing none. let's move on. okay, so item number three is the adoption of the minutes commissioners before you for discussion on possible adoption or the minutes of the july 12th, 2023 meeting and prior to the hearing, commissioners and commissioner lundberg reached out to me regarding a few changes and additions they would like on the minutes. so under item number one, general public comment under the comments made by commissioner lundberg, he would like the pronoun he to be to be replaced with. bay thank you for pointing that out. commissioner lumberg my apologies. under item number four, under action in number one of the motion, commissioner trevino would like to add the words quote, in the future. so the sentence would read under number one, how the

planning department arrived at its decision to approve the permits, including determined it made and whether the planning department could, quote in the future, provide written findings. and then on and in the public comment portion of item four by president peskin and commissioner trevino and commissioner lundberg pointed out a correction in president pesci's name. and thank you for that. and then commissioner trevino would like the second, in addition to the second sentence. yes he would like to change it from quote, he indicated that all of the findings for this ordinance were about streamlining of 100% affordable housing construction . to quote, he indicated that all of the findings for this ordinance were about streamlining of departmental procedures in order to facilitate consideration and approval of applications for the construction of 100% affordable housing. and lastly, commissioner lundberg had a change to item four and public comment under the sentence related to eileen broken and mary eliza's public comment. the word supporting should be

changed to support so thank you for your for diligent attention to detail commissioners and i would need a motion to comment on it. well, first make the motion, then i will ask for public comment. okay are the commissioners whose changes who requested changes are you comfortable with those changes and are you coming? how they were represented and how they are now? i i'm comfortable with the changes. i appreciate the accommodation to my request and i move to approve the minutes as amended. likewise, commissioner lundberg. yes, man, we're non substantive. okay. thank you. okay. thank you. is there any public comment on this motion? okay. i don't see a wait. i see someone's hand raised. okay okay. the phone number ending in 2185, please go ahead. are you here to provide public comment on the adoption of the minutes phone number ending in to go ahead. hi commissioners, it's

david osgood, the appellant from two weeks ago. as far as the minutes, um, i think the first line on page four, not the heading but the first line under that refers to code. section 1,000.6. shouldn't that be 1006 0.6. thank you. i'm sorry. page four 1006 we will double check that. that's correct. correct. yeah. yeah okay. can you can you adjust that, please? thank you. thank you for your eagle eye. so do would you like. no problem. would you like. is there any further public comment on this item? please raise your hand. okay seeing none. do you want to make up? actually make a motion then to incorporate that change as well from the public commenter. oh okay. so we have a motion to adopt the minutes as

amended by commissioner trevino . commissioner lundberg and the public speaker. so on that motion, commissioner lundberg, a commission, commissioner eppler, i present. okay. that motion carries 4 to 0 and the minutes are adopted as amended. thank you. so we are now moving on to item number four. this is appeal number 23 0242 non versus department building inspection, planning department approval, subject property 807 44th avenue appeals the issuance on may 12th, 2023 to law of an alteration permit demolition of non code adu spaces and garage two rooms, one bathroom and kitchen. separate plumbing and electrical permits required for this work. this is permit number 2022 0112 5846 and we are changing the order. we will hear from the planning department first, we'll hear from the department's first, then the appellant and then the permit holder. so. good evening,

president. members of the board. i'm tina tam, deputy zoning administrator. 807 44th avenue is a one story over basement single family dwelling in the rh two zoning district constructed in 1925. the property is a potential historic resource. the property owner is ling law and the appellant is susan tan, who is the tenant. this permit was filed in response to debbie's notice of violation issued on december 17th, 2021. dba ms. and cited there were unpermitted work and a change of use on the ground floor. the end of also explained that approval from the planning commission is required to remove an unauthorized dwelling unit otherwise known as a udu unless there's a building

department determination that the unauthorized dwelling unit is not able to be legalized under section 106 a of the building code and this code section, if a building official determines that there is a serious and imminent hazard, then a conditional use can authorization is not required to remove the authorized dwelling unit on december 30th, 2021, he and nguyen, the attorney for the property owner, emailed planning and dbi staff expressing concerns about the physical and financial limitations with legalizing these listing ground floor spaces in an email, the attorney stated, quote, we only have six feet eight inches ceiling height. it would take a miracle to comply with the current codes with such existing conditions. technical difficulties and not to mention financial unavailability, end quote. in response, a planner

informed ms. nguyen that the city is experiencing a housing shortage in that legislations were passed to allow homeowners with various options to legalize existing judas the planner, then cc her response to the adu accessory dwelling unit project team on the next day, a member of the adu team reached out to ms. nguyen and provided her with additional information, including links to the city, adu and unit legalization programs. in the same email, the adu planner re reiterated to ms. nguyen that if the owner wishes to remove the edu a conditional use authorization would be required on january 25th, 20 and 22. in response to the notice of complaint, the property owner informed the enforcement planner of the following one. she had no knowledge of when the kitchen was installed and two there was never been any rental or lease agreement between the owner and

tenants. the tenants being the caregivers for the owner's father who lives on the second floor and third, the caregivers have already moved out and are no longer living on the ground floor. as such, the enforcement planner completed her screening with this information provided by the property owner and concluded there was no edu on the property while the living space on the ground floor met the physical definition of a edu as defined by the planning code, the planner did not find that the living space was being used as one. the planner was under the impression that the living space on the ground floor was used solely by the caregivers. for mr. chua ly, the father of linley, who's the prime primarily primary residents of the property. as such, the space on the ground floor was essential and to grow to the main living space. on the second floor. it was not considered as a separate dwelling unit. furthermore the owner informed the planner that the caregivers

have moved out and even provided evidence of such, including information about the location of their new residence. however, through this appeal process, we have learned that one of the caregivers, ms. tan, still lives there. based on the information provided in the brief, ms. tan is no longer the caregiver for mr. ly and is still residing on the ground floor of the property. this information is critical as it changes our determination that the space on the ground floor is no longer a living space for the caregiver, but rather a separate dwelling unit. not only does the ground floor meet the physical definition of an unauthorized dwelling unit, now it functions as one. it has a separate independent direct access to the street. it is separated from the main living space on the second floor and it has its own bathing and cooking facilities. with this new information, the department believes a conditional use is required to

remove the ground floor living spaces that we are now calling an unauthorized dwelling unit. as such, the department is recommending that the board grant the appeal and revoke the permit on the basis that the permit was issued in error. the planner who reviewed and sign off on the permit relied on the inaccurate and misleading information provided by the property owner. that concludes my presentation. i'm happy to answer any questions as okay. i don't see any questions at this. oh, commissioner trevino, since you're going first, i think this question may guide the my thinking of the rest of the case . can you precisely say, is it the difference in the employment status of the tenant that caused uses you to say it was provided the information was provided in error? or is it or is it have to do with the character of the unit? thank you for that

question. it's a combination of both. it's how the how the space is being utilized. i'd. in the past it appears that the caregiver was residing downstairs even though she had her own cooking facilities and bathing facility. she was moving between floors because she was taking care of the primary residence on the second floor. once she stopped being the caregiver. there's no more of that connection and flow in terms of users of space. okay. it seemed to me that there was. in the materials evidence that she continued to go up and down, to go up to the upper floor, but that the that the real key was that her existence wasn't disclosed to the department in december. so i was trying to figure out which which one is more important to the department

, what's important to the department is that it number one, meets the definition, the physical definition, and to how that space is being used and the relationship between the tenant and the primary residence of the property. we were under the impression that there was nobody living on the property. we were told that everyone moved out and that there was no eviction and. and is this an empty space where one wishes to convert it back to more parking on the ground floor? thank you. okay. thank you. no further questions. we'll now hear from the department of building inspection. good evening, president swig commissioners. i'm matthew green, representing the department of building inspection this evening. i would say first that i support the planning department's recommendations to revoke the

building permit. it appears that a vital step was missed at the beginning of the process, but i will just say for the record, the department of building inspection received a complaint in october of 2021, and we wish you a notice of violation for that area on the ground floor, there are several substandard conditions there. the permit applicant filed for the permit to comply with the notice of violation in january of 2022, and the permit was issued in may of 2023. i'd just like to read some of the substandard conditions that the inspector found and his inspection the following work. the following code violations exist at this property. unapproved wiring, unapproved plumbing, lack of required smoke detectors, lack of required carbon monoxide detector, inadequate exits and proper room dimensions and ceiling heights. then no evidence that the required one hour fire resistant materials were correctly installed between added dwelling unit lack of emergency escape rescue openings

and no permanent source of heat in the living space. so i would say these are all substandard conditions, but i wouldn't say that they rise to the level of imminent danger that cannot be repaired. but i would still go back to say i believe the important step was missed at the beginning with the planning department. i support their recommendation. i'm available for any questions you may have. thank you. there are no questions at this time. i think we'll now hear from the appellant her attorney, miss kong, is here and the appellant. i believe, will be speaking for one minute. and since she's speaking chinese, she she will get an extra minute for her interpreter as well as a witness needs an interpreter, so they'll just they will speak for one minute. and also get one minute from the interpreter. so we'll start with i understand miss kong, that you would like five minutes to start and then we'll hear from miss tan. is that right? okay. welcome. so we'll

start the timer. um good evening, president swig and members of the board. our briefing in the parties provided a good number of facts in the briefing materials. and there are a number of facts that are disputed. however over there are essential facts that are critical to determine nation of an unauthorized dwelling unit, a udu that are not in dispute. and they are shushan tan, the appellant, lived on the lower floor of 807 44th avenue, and she's lived there since 2007. she lived there when she provided caregiver services. she stopped providing caregiver services in 2020, and even though she was no longer a caregiver, she continued to reside on the premises and she's

still living there. and it's been three years since she stopped being a caregiver. it is also undisputed that the room she lives in is in the lower floor of the property. she keeps a lock on the door of her room. she uses the side door to enter her home. she doesn't have to go through the upstairs unit to reach her home. there is a bathroom on the lower floor where she lives and does bring the time that she's lived there . a kitchen had been a stove actually had been installed during that time. there is a stairway and a door that separate the lower unit from the upstairs. that door remains closed and has a latch. these undisputed facts make it unequivocal that ms. tan occupy the lower unit of the property, whether or not her occupancy is a tendency is actually air relevant to the issue of whether or not the subject property is a udu. section 317 doesn't require a tenancy owner, only that one or more of the rooms occupied by

ms. tan have been used as a separate, distinct living space and is independent from the upstairs unit. this means that she has independent access to her unit, doesn't need to go through the upstairs to get downstairs. there is no dispute about this. there's a side door next to the garage that she uses to go in independent. it also means that there is no open visual connection to the upstairs unit. there's also no dispute about this. there's a stairway and a door that separates the downstairs unit from the upstairs unit. this door has a latch and is closed. the planning department in august of 2022, and i'm referring to exhibit seven of the appellant's brief found that the physical that the unit had, the physical characteristics of being independent from the upstairs unit, we defer to this finding. we also defer to the planning department's finding today that the unit is separate and distinct. and i'll speak a little bit more about this. the undisputed facts are also unequivocal that ms. tan's

occupancy was separate and distinct from the upstairs unit. even if you take the permit, holders claim that ms. tan's occupancy was tied to her caregiver services, which in fact they were not. as of spring 2020, ms. tan's occupancy was no longer that of a caregivers, and that renders her occupancy separate and distinct from the upstairs unit. the fact of the matter is that ms. tan's occupancy has always been separate and distinct from the upstairs unit because she's a tenant, she's provided six rent receipts, which are exhibits seven and eight of her declaration. these exhibits specify the amounts of the rental payments. the dates, the rental payments cover. and when you do the math, you can calculate that her monthly rent was $400 a month. these are the only rent receipts she has because mr. ly would not give her rent receipts when she stopped paying her rents in lump sum. and the refusal to pay to provide a rent receipt is

actually a violation of the law. without these receipts, a landlord can simply deny a tenancy which the permit holder in fact has done. she denied and continues to deny that the appellant is a tenant. she also continues to deny that the appellant, sister and brother in law were tenants and you'll hear from ms. tan today about her tenancy and you will also hear from mrs. mrs. he about her tenancy in exhibits nine and ten of her declaration. ms. tan provides photos proving that mr. ly accepted her rent in november 2021. that's 21 months after she stopped working as a caregiver. now, regarding the permit, the permit holders brief on the whole, to the extent that it alleges facts that are inconsistent with those in in our brief, we disagree with those and we're happy to answer any questions about that planning. in conclusion, planning code section 317 is clear that the facts here militate in favor of granting

the appeal and revoking the permit because the subject property is a udu that cannot be demolished without a coa. thank you. thank you. so we will now hear from the appellant for one minute and then the interpreter for one minute. i susan tan come in. so so thank. ya. all okay. some fancy filing to say they want to only go back. to so my name is susan tan. i'm 17 years old right now. i move into the unit in 2002 thousand. sorry.

207 august 1st, and then i live there. the address is 807 44 avenue, california. san francisco, california. so my monthly rent is $400. i pay rent monthly to the to the landlord every month. right to until now . okay. thank you. so now one minute for the next witness, and then the interpreter will come. thank you. why why are you yelling and calling? yelling he didn't know you. i told starting. just say something until someone. 6:00. see, i called all. i. can to paco. come up. how can. you cancel all he

can see you pay a lawyer. i don't come. come. my lawyer ying singh. so go form paying all. you can come. to the law yous you know what they say. come your lawyer. thank you. okay. thank you. so we'll not hear from the interpreter for one minute. my name is charlene tan. i was a tenant at 807 44 avenue from 2009 to june 2002. landlord was carla. i paid rent to carla and cash at times 600 or 650. i was a tenant because carla offered a rent to rent a garage level room to my husband and i. my sister lived there was a tenant there before me in 2007

at 80807, 44 avenue. she paid cash to carla, i know 30s she told me you have 30s the interpreter does. did you want to add or you're finished? okay. okay i need. to say what you got for happy. okay. thank you. can you interpret that in? the time is up. yeah. we lived in 807 44 avenue in the garage. in the basement? sorry. in the basement. lower level. okay. thank you. so that concludes your time. are there any questions? at this point, i don't see any, so we will thank you. you can all be seated. okay we will now hear from the permit holder. and i believe she is present via zoom. ms. ly okay. please go ahead. first of all, do i have i have a co owner with me, nelson wong and it is his

would he belong to the one minute witness or should he be included in my seven minutes? he should be included. you have seven minutes to present and three minutes in rebuttal. how you want to divide your time is up to you. they just told me in advance what their schedule was because they had an interpreter. that's how they wanted to divide their time. so it's up to you how you want to divide your time. okay, so i wanted to evaluate him then. so. so this whole thing is completely lies and deceit. my father is an elderly, physically mentally disabled, and he does not have any title and he does not distinguish what is wrong and what is right. he completely doesn't. he cannot he have slow speech. he is not capable of doing anything. he has two cancers, several stroke. a

person like that and you know, a couple with my mom, she she has dementia. so and he also has dementia. so both of these condition proving that they are not able to determine or or enter into any legal agreement with these people. they so-called tenants. we are not aware of whatsoever between them because after 2005, we all moved out and we entrusted the caregiver shoes and tan and her sister to care for my parents and we came to the house multiple times. we would never tell that these people are paying rent to my dad whatsoever. when we asked my father, he said he deny everything. he said, no, he doesn't accept cash. he doesn't. and as a matter of fact, he doesn't even need cash to support him because he's on ssi.

and then we paid for most of the utilities, things of that. and we have no incentive to rent the property out because it's a property that for my father to live in. so when i moved out, you know, there was no kitchen and it was just like two rooms, so. so we can just eat, just for our family to live. so i let the i let the appellant and her sister to live in the house, you know, to accompany my father so and to keep him emotional companionship and we never you know, really verbally or orally or tell them, okay, you are a tenant, you need to pay us this and that. all of these things happened without our knowledge. and is, is really prejudice against us to assume that we are

landlord because we never even collect a penny from them. and my father can testify for all of these facts because he's now 94 years old. he does he does not need this money to support himself or or and i believe that the appellant and her sister has been abused, abused him because we found out that she make him to pay things for her. and also, you know, make him sign things and then i as i put in a proof, he really have some sort of emotion or relationship with her. so in one point, he proposed to her and she repeatedly denied his proposal because she know that he's not the property owner, but but none

of this prevent her to, you know , to let us know as a property owner that, okay, we are your tenants or things that are, you know, we completely out of the blue and then we just entrusted her out her her care and her sister came to my parents. but again, you know, this is completely all made up facts. they they just trying to establish tenancy and a few more things i need to count to the attorney that. mean for us to the planning department did tell us that she is still left there but because she told us that she will move out. so that's why we didn't start the eviction process against her. but we did for her sister. so and then they voluntarily moved down because they want to sue us later. and

this they mentioned that this has not i provided the picture to now, there was no lunch because we have to get that door open for my father to yell out to suzanne in order to get her a care or for any emergency purposes purposes. and, you know , again, even though the unit downstairs is considered independent but is not technically independent because they don't have the privacy, because we have to use the stair, we come out through the common area to get to our garage to dumping, to dump trash, do laundry, to get to our backyard. so this besides they have maybe they may have the exclusive use in the room, but they have no exclusive use in any other area, including the bathroom, which is a public bathroom for anyone to use. if they're in the garage.

so again, so that was all the facts that i gave to the planner . okay. and so i'm not sure how many minutes i need to let my other one minute and 15 seconds. do you want him to speak? you also have three minutes rebuttal. okay nelson okay. can you hear me? yes please go ahead. okay my name is nelson wong. my name is stated on the living trust as a joint tenant with bing law. therefore i am considered part owner of the subject property. however, i do not participate in any of the ownership responsibilities of the family home, which belongs to my wife, amanda, and along with that said, speaking on behalf of the living trust, i attest that there has not been any verbal written agreement for tenancy lease or payments of any kind with ms. tan in fact, i personally have never had any

conversation with ms. ten as a member of the law and dang family, i only note that my in-laws hired a caretaker years ago to assist their ailing mother and aging father to the best of my understanding, ms. ten was only hired to be cared caretaker and not considered a tenant to make it more convenient for ms. tan and give my in-laws a peace of mind and someone that's always readily available to assist my father in law. mr. law graciously enough, allowed ms. tan to stay overnight on occasion, one at the ground floor rooms. there has never been. this has been going on for many years. even after my mother in law's death, my understanding was that ms. ten was there for companionship from my father in law. i was not aware ms. tam had taken residency in the home. nevertheless i have not at that time. okay. thank you for your time is up, but there's three three minutes and rebuttal. thank you. so i don't see any questions. this time. so we're going to move on to public comment. is there anyone here to provide public comment for this matter? please raise your hand.

okay. please approach. president swig members of the board. my name is jen fujii. i'm a staff person in at chinatown community development center and we are quite concerned about cases such as these. i think that i think the reason why the city has adopted planning code section 317 is to preserve our affordable housing stock, our rental housing stock and so i, i want to underscore the fact that the question with respect to whether or not a conditional use is approval is required is not contingent upon whether or not the occupant of a unit is a tenant or not. is it occupied and does it meet the physical standards that are laid out for what is an unauthorized unit? and if it meets those physical

standards, this whole debate about whether it's a tenant or whether people are paying rent in so many of these cases, it's impossible for tenants to prove without a receipt. and they don't generally get a receipt. in this case, there are receipts , but you don't need to make a determination as to whether or not the person is a tenant or not. the fact of the matter is the planning department has, as has found, is that after that, even by by both parties, there's agreement that the employment relationship ended in 2020. and since that time, mr. han, as you saw today, testified, she was occupying the unit. therefore the unit qualifies as a udu and a conditional use authorization is required in an approval by the planning commission. thank you very much. thank you, sir. can you fill out a speaker card, please, so we know who you are for the minutes. thank you. is there any further public comment for this item? please approach or raise your hand if you're in zoom. okay. i don't see any

further public comments, so we're going to move on to rebuttal and we'll hear from the planning department first. once again, tina tam for the planning department, i'm going to go ahead and maybe walk you through what a screening looks like. a screening is triggered when there is a removal of a kitchen, a bathroom or a wet bar. in this case, there's a removal of a kitchen information that we look at include an affidavit from the property owner, existing floor plans and proposed floor plans and photographs of the space on the form to the property owner stated on the cover letter and bold. it says the planning department. if the planning department determines that a udu is present, the property owner will be required to legalize the

unit, which will which can usually be completed administratively or seek a conditional use authorization from the planning commission to remove the unit. so it's been very clear about what the process looks like. who's the property owner submitted her affidavit and say that there is no udu on the planning side, the planner examines all this information, including the affidavit, floor plans and the photos and answers a two part question. the first question is does a space meet the criteria of a physical edu as defined by the planning code under section 317? the answer for 807 44 avenue is yes. then the second part of that question is how is that space use? and part of what we do with answering this, this part of the question is that we look at when board records, look

for evictions, we look at voters registration to see who who lives there and who who's been recorded in what space. and if there's a separate unit of fine in the voters. reg, that gives us an indication there might be a separate unit of course, the affidavit from the property owner in any sort of documentation that indicates the space had been occupied side the planning code in in in defining a edu does not state that there has to be a lease agreement or that there needs to be a rent exchange between the two parties to be determined as a udu. part of what we had perhaps misunderstood from the information that we got was that there was no board records, no eviction, when in fact there was that ms. ten is recorded as a as a as a residence in the voters road in this property, and that she is occupying the space and

she at least has been for the past 16 years. so for those information that we know now that we didn't know before, wasn't clear about before we are considering and determining that the spaces edu i'm happy to answer any more questions. thank you. president very quickly. so as you just said, if it if there's a kitchen, if there if there are certain physical attributes of the space, it is a edu. what i want to clarify and i had this question before there was public comment, but i want to put it on the record as a commissioner asking you this question. it doesn't does it matter whether there is a what the agreement is, whether there's a breached financial agreement or a nonpayment of rent or anything like that? that changes the characterization of this as a you'd argue, or is the nonpayment of simply a civil matter. but it has nothing to do with whether it's a udu or not a udl, right. from the planning department standpoint, it may be different from the rent board's

records or processes. we're not looking at rent absence of rent or the amount of rent between the two parties to make a determination that there is a edu. it doesn't even come into play right? it's strictly the physical characteristics of the space and how it is utilized for residency, correct? that is correct. thank you very much. thank you. we will now hear from debbie. nothing further. okay so we will now hear from the appellant. so you have. three minutes. did you want to divide your time? i think i'm going to go very quickly. i think i might. i probably won't use up all three minutes. okay so if there's time left, yes. okay yes. so i just wanted to point out a few things based on what lynn law has just

said. you know, one of the things that she's been saying a lot over and over again is that her father is mentally incapacitated. now she's saying that he has dementia, but then she also just told us today that he can come in and testify that he doesn't need the money and she's she has said that rent hasn't been collected previously. she said that today . she said now she's saying we didn't know what was going on. we didn't know what was collected. we didn't know what agreements were made. she she just said that today. so i submit to you that, you know, there's a question about credibility in terms of what ms. law is saying. and there's another undisputed fact that bears mentioning in january 2021, the permit holder initiated unlawful detainer action against appellant, sister and brother in law, mr. and mrs. he and you have to remember that by this time the permit holder had allegedly discovered that the appellant's sister had been

abusing her father for years. the permit holder claims that she made this discovery in spring of 2020. this is what she says in the first sentence of page five of her brief. a reasonable person has to ask her if she knew that the appellant was mistreating her father at that time. why didn't she also include the appellant in the eviction? because the allegation of abuse, all of these allegations of abuse, like many of the allegations in the respondent s brief, are not true. and importantly, the truth is that the permit holder derived a benefit from ms. tan's occupancy, her rent of $400 per month. since 2007. now she also said to the to the issue of her not knowing that rent was being collected. i have here two checks. is there a projector i can put this on? yes. can we? i have here two checks if you're going to overhead, please, and face it towards you as if you're looking at it. so okay, go ahead. this this first check is

check number 1016, dated february fourth, 2018. in the amount of $1,200, it is made from mrs. he her name on here is her maiden last name tan and her husband and that was made to ling law for rent. i have a second check here. and that is dated also dated february. oh is that the same one. sorry i paused your time. and you do have 38 seconds left. time presuming i have a second check in the amount of $1,900 and that is also made out to ling law and that is also from mrs. he for rent and you can see in the documents that those checks were

negotiated by the bank. do i have time to ask you a question? 19 seconds. okay so can you translate for me while i ask this question? okay. okay and that is where these checks for rent, these checks that we just showed the board? well, i. so this is for rent and that's it. that's all. okay thank you. i don't see any questions at this time. you can be seated now. we'll hear from you. okay? okay. thank you. thank you. okay we will now hear from the permit holder. did you want to speak or mr. wong? yes, i want to rebut to do. okay. you have you have three minutes. three minutes in rebuttal. joshua i will try. one minute. i will live one minute to my sister, tiffany. so first of all, the i would say she she

mentioned about my father. i didn't say that he can come in to testify. i said we could put him to testify, to say whether he received because dementia is something that is very unstable, mental state. okay i i'm not sure i'm not my father, so i don't know. but we did ask and he denied that he never see anybody checked. and the check that's just present it to the board. i have no knowledge. okay. i could prove they checked. i never endorsed the check to deposit. i don't know how those checks went. and what happened between them and my father because, like i said, we discover a lot of financial transactions. charles has been on my father's credit cards. so when we questioned him, he said

that he he trying to purchase stuff for appellant and her sister and he got reimbursed or something like that. so again, there's a lot of confusion, confusion going on. and i'm to be honest, i don't even know exactly what going on between them and my father and the last thing i want to mention also that these people abuse my father, by you know, forcing him to acknowledge the check or like you said, they illegally took my father photo without his consent . and then they tried to establish some sort of evidence to prove the tenancy, which is unacceptable. but all of these we will take this matter to court to prove. okay, so for this particular hearing, i just want to mention that the condition of use authorization, there's a section. 3117

mentioned about a soundness. i already one minute left if you want your sister. sorry. okay. trying to help you. tiffany. go ahead. okay. i pause at the time . tiffany hi. hi. sorry. yeah my name is tiffany blue and my father is who live at the 807 avenue and back when my in the early 2000 that when my mom were really sick, we brought in michelle ten to have her as a primary caretaker for my mother during that time her condition get worse and worse. and i believe in my i have a feeling that there was abuse of some sort and that caused her to death later on. and then and then during the same time, we are strictly asking her to stay there to take care of my mother and my father as a caregiver. that is no evidence of

whatsoever or any kind of agreement that she is the tenant or the property. and so the reason for this whole ordeal is because now that we find out a lot of evidence sorry, cookie. thank you. miss fu, your time is up. we do have some questions for the permanent holder. first from commissioner lundberg, then commissioner trevino. thank you. i'm going to keep my questions brief because i feel like i have a pretty clear picture of this case. but my first question is a simple one, ms. law does miss tan currently live in the lower level of this property? yes she does, because she told us that she applied for some housing. no, i just want that was a yes or no question. thank you. oh, yes, she she still live there on the condition that she says she would leave. and we even offer her to go upstairs. i don't need to hear the rest of this answer. thank you. it was a yes or no question. my next question is, i this is almost a side note, but

we heard from planning that the kitchen was installed after the time and ms. tan also testified as much that the kitchen was installed after she moved in in 2007, who installed the kitchen? we have no knowledge. i don't know. no one can answer this question. only they know these. only these parent and her sister know how it's getting to there. okay. thank you. thank you, commissioner trevino. thank you . i'll be brief as well when you file the demolition permit. did you know ms. tan was residing there? yes thank you. and another question from commissioner lundberg. one more question. you you marked on one of the applications to the planning department that the unit was owner occupied, and you have held yourself out as the owner of the property, as has your brother, as a part owner of

the property. have you at any point in time lived in this in this home? yes, we lived in two, 2005. okay. and you have not lived there since 2005? we don't live there. but when. no, that's it. it was. you have not lived there since 2004. okay thank you. thank you. i don't see any further questions. so, commissioners, this matter submitted. thank you. before i ask my fellow commissioners for their comments, i would like to present some history. so i was i was a rookie on this panel. i think i was three months into my term. and there was i think the item was in the richmond district. and it was it was similar. it was the removal of a unit, a demolition permit or something. but somebody was getting kicked out bottom line, and i don't even remember what

the result was, but i remember what my feelings were. and that is somebody who had lived in an in-law unit for a long, long time was getting kicked out in the middle of a housing crisis. and this was how long have i been on this panel for ten years. julie 2015, right. so and as a result, i, i suggested that we write the board of a note and noting that people were two things were happening. one, that people were getting in-law units. yes, they were illegal, but yes, they were habitable units. we're getting kicked out without notice. and then and therefore being added at risk, or at least were at risk of being added to the homeless population and the reduction of a unit was adding to the housing crisis. the board and we sent as a as a board, we sent this

letter to the board of supervisors asking them to look at what were the statutes at that point and maybe considering a revision, such became what is now known as undue. and what we're talking about tonight. and that evolved very quickly into adus. and i'm very proud to have been part of that. and this this is exactly this this case exactly epitomizes the important importance of that legislation at that time, which i think it was mentioned as 317. i can't remember those details. the fact is that it prevents an action to demolish, first of all, to kick somebody out while they're living there and then to demolish a piece of housing the city of san francisco can be prevented, especially given the opportunity through a conditional use to legalize the unit. and so this is this case

for me is the poster child. and therefore, i fully agree with the recommendations of planning . and i'm glad to see that. that's why this legislature was done. and we are upholding the terms of this legislation, hopefully at the recommendation of the planning. so i'll let anybody else wants to comment. comment commissioner trevino uh, thank you, president, for that history. and i also just want to say parenthetically that this is a very tragic situation to have the family caregiver in a situation where a family member has dementia. it is an extraordinary situation. they this caregivers work extremely hard. it is emotionally so difficult and challenging for all the members of the family. and it's unfortunate that they find themselves before us today in this situation and in this dispute. i agree both with the

history president, but also with the presentation of the planning department. but for the reason that whether miss tan was an employee or or or whether she was a tenant, she was there and on the she was there at the time of the application for the demolition permit. and that was not disclosed. it was disclosed incorrectly. and i would find that the planning department did not have the benefit of a full and accurate picture of what was going on and that the application was defective. and on those grounds i will move at the appropriate time to grant the to grant the appeal, if you want to formalize that motion, you may, if you want, before we hear from commissioner lindbergh , well then i'll move that. the board uphold the appeal based upon the incomplete information

provided in the application that was granted. commissioner lambert sorry. obviously i support the appeal as well. just to get that out of the way. there's several things here. first of all, i think what miss kong, the tenants attorney, stated regarding credibility, that is the real issue here. and i believe that ms. la lied several times on the planning applications and in emails to planning staff, and i believe she lied. here again tonight. i i as you all know, i'm a tenant attorney by trade. i've litigated at least 150 unlawful detainer cases in san francisco . and this is one of the most egregious cases i've seen. and that's a lot coming from me. i also want to thank mr. fukuoka for coming. he truly is the expert in san francisco on unauthorized selling units, and

i appreciate him coming out to speak on behalf this evening. i'm also very grateful that the appellant here found an attorney and litigated this because this would have gone unaddressed if not for that and for every case that there is an attorney and they do file an appeal, there are dozens of cases just like this that don't ever make it to a stage like this. and i think this is a wonderful example for that, that people can have power and people can. fight the good fight for themselves and their family members. i think it's really important that and finally, i would and after conferring with the city attorney on this point, i would like to urge planning and dbe staff to take a very close look at all of the documents and emails submitted by the permit holder and work with the city's city attorney's office as appropriate to see if civil and

or criminal penalties could or should be pursued. in this case , i think that would be appropriate. so i will pass to commissioner eppler. thank you. i think the record on this case is very clear and i have nothing else to add. okay. thank you. so we have a motion from commissioner trevino to grant the appeal and revoke the permit on the basis that the permit was issued in error because there was incomplete information given on the application. okay. so on that motion, commissioner lumberg, i commissioner eppler, i present a so that motion carries 4 to 0 and the appeals granted. thank you. we are now moving on to item number five a and 5b5a is appeal number 23 027. albert albert and patricia arruda versus the department of building inspection planning department approval subject property is 2455. harrison street appealing the issuance on may 23rd, 2023 to farm and

properties llc of a demolition permit, demolishing an existing auto repair industry building. this is permit number 2019 0430 9260 and item five b is appeal number 23 026. albert and patricia versus department building inspection planning department approval subject property 2455 harrison street appealing the issuance on may 23rd, 2023 department properties of a site permit erect a four story five dwelling with one basement mixed building type three a over one a and this is permit number 2019 04309262. madam executive director before we get started and call the parties to the podium in in under the protocol that the individual commissioners are asked not to do independent research during before hearing. therefore to place of maybe

parties at a disadvantage. i sent you an email requesting that you consult with the our city attorney noticing that two of the items on here or two of the major discussions in this case related to property line windows and also solar installations, i note again, i have the benefit of seniority twice here. we have not had a property line window dispute during the tenure of any of these three commissioners. trust me, commissioners speaking from lots of bumps and bruises, property line windows require some significant understanding and guidance. so i asked the executive director to please consult with the city attorney to give us a or the planning department to give us a quick

tutorial on property line windows and out a deal with them. the legal parameters. et cetera. secondly again, in my tenure since 2015, i have never seen a solar installation item in 2015, they were few and far between. needless to say, over the last almost ten years, they've thankfully appeared for the benefit of our environment. but from a legal standpoint, i for one have. although those referenced in one of the briefs, i. i am not understanding of the issues around solar installations and so i also asked the executive director to ask the city attorney or, or the planning department to give us a some information and some guidelines, legal guidelines,

not editorial guidelines around solar installations and related issues. so may we please get some feedback on that? i did forward your question to the appropriate departments and copied the parties. i think it's appropriate for the departments to address your question during their presentation time, which they planned on doing anyway, i presume. but if you wanted to hear from the city attorney or i think i think before both parties go into their pleadings, okay, you know, before i go driving down the street that that has a doesn't have a sign on it. but but, you know, there's an assumption that the speed limit is 25 or maybe it's 35. i'm not sure. i'd sure like to know whether i'm speeding or not. okay. so you would like to have the departments come up. so i think it's important before we hear the pleadings to know the rules. and so in that context of knowing the rules in advance, we

can we can have some context to understand their pleadings. okay. so would you like to hear from the planning department or the department of building inspection first? whatever over whatever is appropriate, but not not related to the case at this point that's going to be in there. okay. their presentation specific only related to the rules and regs, one around property line windows and two around solar. okay did you want to give them a time limit or just have them answer the question? i would ask them to be as succinct as possible. thank you. good evening. matthew green representing dvi. the easy one. first, the solar panels. there's no restrictions on the neighboring properties of what can be built. a solar panel permit is for that lot only. so there's no it's not addressed whether something built next door will block will provide shade or not to the solar panels . so that's clear. there's no

much so a property line, windows that's been going on for a long, long time. we have an administrative bulletin. ab 009 does that addresses this directly? i just go down to key points and answer any questions. if you have so administrative bulletin 009 is the local equivalency for approval of new openings and new and existing buildings in property line walls. there are several conditions. the openings may not be used to provide required light and ventilation, required egress or for required emergency escape. the openings shall be fixed, meaning they can't open unless more than 50ft above the roof of any adjoining building or more than the distance prescribed in table 705.8. it doesn't apply here. that's for high rises. the opening shall be located entirely above any adjoining roof, or at least six feet laterally beyond any wall of an adjoining building. so it has to be above the roof or it can be beyond the rear of the

adjacent building. the opening shall be protected with fire assemblies such as fire shutters or rated window assemblies having a rating of at least three quarters of an hour. the opening shall be protected by a fire sprinkler system. having a temperate, quick response type head, there is an exception for r-3 occupancies. i can go into that later if you like. the adjoining. if the adjoining a building contains an occupancy, the proposed opening shall not be located closer than six feet, measured in any direction to any existing opening and the adjoining building, unless the adjoining owner gives written consent. now, this is a key point here. the owner of a building with such opening shall provide a recorded statement that these openings will be closed or protected with approved fire resistance, wall construction in the event that the adjoining property is improved in such a manner that the openings no longer comply with the provisions of this administrative bulletin, to put it simply, if the windows are

approved and in the future, somebody builds the building next door that are higher than the windows or make these other provisions inadequate or not met anymore, they have to fill in those windows and then they go on to about when property line windows open onto city property. but i think that's a little too in the weeds for this discussion that was written in 2002. the 1969 building code. also addressed this issue. it says, i recorded agreement shall be filed against the property. so stipulating that the openings will be protected or closed as applicable with proper window or wall construction in the event that the adjacent building is increased in height or a new building it's constructed. that's the 1969 san francisco building code 12 five a that's the first code reference that explicitly states this. but firewalls have been protected since the beginning of the building code. so to be redundantly clear, a property

line window has no rights. and if the next door neighbor decides to build right up against that property line window, the owner of the building with the property line windows has to take action to seal those windows legally and they are absolutely not protected from the eventuality of something. somebody building a building right next door and basically obliterating them, to be blunt. yes yeah. okay. thank you very much, commissioner trevino. thank you, president. i do appreciate your request to this briefing before. not only those of us who are new to the board, but also for the public and for the litigants, it's very important that these are people's houses that we're talking about their homes. and it's important that the public knows that we understand the implications of all the all all of these difficult and complex provisions in the planning code and elsewhere. my question is, i thought i understood what you

said about the solar panels as you briefly stated it. and then when you went into the second issue, i want to make crystal clear what you are, what you are saying about the solar panels. do the solar panels have any special status that an adjoining property owner who may build something, does that adjoining property owner have to do take any special efforts to take care that they are not blocking the operation of the solar panels of the neighbor and no. great. thank you. thank you. no further questions. ms. tam, anything from planning? we can proceed now. thank you very much. thank you. so we will now hear from the appellants. welcome since there are two appeals, you have 14 minutes. thank you. good evening, president. members of the board, steve williams representing the appellants, albert and patricia perugia, the

owners of 2451 and 53, harrison street, which is the adjacent building directly north. albert and patricia are here tonight, and they would like to address the board as well. albert contacted me sometime last april about representing him. this appeal of these permits we'd gotten to know each other over the last 20 or 25 years or so, usually on the opposite sides of cases of this nature. i did not represent him or patricia back in 2021 when they filed a discretionary review application to have the project reviewed by the planning commission and then subsequently dismissed that day our application i pointed that out in my brief that the project was not reviewed at the commission to provide the board with some contact based background, if you will, and to let the board know that the project has not received that extra layer of review that that

comes with a public hearing at the commission. so let me start then by asking patricia and albert to step up and have them address the board. can you pause their time, please? time has passed. thank you. excuse me. hello. my name is albert urrutia . i'm president. mr. sorry, president swope and board members. i'm albert. this is my wife, patricia. i'd like to talk about the building at 2451. harrison, the northern neighbor of the proposed building at 2455. harrison we purchased the building in 1997 to act as my office. the previous owner owned both properties 24, 51 and 2455 at the second floor, there were offices in the front and a residential unit in the back. it

had the whole building has 100% lot coverage. when we took over the structure tenants asked us if they could stay in the unit in the back since we didn't need the extra office space. we allowed them to stay the we had one master tenant for five years and that was taken over after that by another. when he left, there was another master tenant, the apartment is a 1500 square foot apartment with a kitchen, three bedrooms, a living room and a tv room. the south facing windows in the unit, were there when we purchased the building and from from the records, it appears that they've been there since 1972. we had asked the 2455 owners and architect for a light well to retain at least two of our windows to so that we may maintain one one of the bedrooms and giving the living

room at least one some light and ventilation. but they refused. they stated that they cannot afford to lose any of their space for the for their units in reviewing their documents. i would just say that couldn't they use use some of the space that they have in their three floors and mezzanine for their non life science laboratory spaces for one of their units in 2007, we added the solar panels to the roof. our electric bill is zero and we believe we are giving enough power back to the grid. the 2455 building is so tall that there would be no direct light to the panels when and when it is built, we'll be losing. we'll be using some of the power back from the grid. i withdrew my 2001 planning permit appeal because of the threats

from the neighbor. i was particularly vulnerable as we were coming out of covid and i was starting my new practice from from from again, from start. i had seven employees and i was trying to keep the cash flow coming in and i couldn't afford the attack. and the publicity that they were threatening me with. do you have anything to add? just you know, we've we're both born and raised in san francisco, so we love this city. we went in good faith to the neighbor and asked, is there any kind of condition you you could help out to keep the unit? and he said, no, there was i saw something in there, description that says they had discussions with us. he said no. and then he said, maybe when i'm done with my project, maybe i'll take your place off your hands. so it's been a really emotional

thing. and had i had i been here when they were calling him on that day of the before the appeal to tell them to drop it, because that was a smart thing to do. maybe if i had been here, i was with my daughter instead. maybe if i'd been here, i could have helped support him. and let him at least come in and whether you chose or not to make any concessions, at least have us be heard. you know, if you have some more. thank you. steve williams, again, for the appellants, there's no doubt whatsoever about the impacts in this case that will have on the building. there's no question the project will permanently block all the light air access to the five windows for the residential unit at 2453 and

also the project will block virtually all of the direct sunlight to the solar panels on the roof of that building. the question for the board, i believe, and i hope, is whether the board or the department should do anything about that to mitigate or reduce those harmful impacts. and i believe the answer to that question is yes. hopefully you had some time to spend with my brief. and i think that there are pathways to reduce those impacts and i believe the policies, the code and common sense require those steps. it's an interesting block. it's nearly 100% residential, even though it's zoned mixed use. it does have some mixed use. buildings the celebrated new restaurant flour plus water is on the same block face at the far northeast corner. the mission recreation center is directly across harrison street from the project site of the 30 or so buildings on the block. and that's both sides. 23 or 100% residential.

all six of those are mixed use with commercial on the ground floor, with residential above three of those ground floor. residential spaces are vacant and that includes 24, 17 and 19 harrison street, 2413. harrison street on the east side, and then over on the west side, 2400. harrison street is vacant and then, with the exception of the recreation center in the middle of the block on the on the west side, all the other buildings on the west side are residential. so this is a situation it's going to repeat itself over and over throughout the eastern neighborhood, zoned area, which is a very large area , incredibly larger new buildings are being placed in essentially what our residential victorian neighborhoods and that's what this was previously. if you look at the buildings that are there now, there is a

residential neighborhood. there used to be a train that ran down the middle of harrison street and when you have a nearly 100% residential neighborhood, this is where the a critical review and application of the urban design guidelines is going to be so crucial to keep those those neighborhoods livable and sustainable. and to keep those units online, to keep people living in them, and to keep them from being demolished and to keep that what the apartments call naturally affordable rental housing available. and so if we look at the urban design guidelines and i, i focused on that in my brief at page ten, the project violates those guidelines. the guidelines are very clear that they're looking for transition buildings in height and mass between smaller existing buildings. they're

looking to shape new buildings to respond and reconcile or moderate differences between the existing ones. it's as consider setbacks and side terracing to reduce light and air impacts to adjacent buildings. transition from these new taller buildings to the smaller scaled residential buildings as they urge compatibility and helping these buildings fit into the existing neighborhoods. this project has no setbacks or side terracing which might reduce the impacts to the building. this was a recommendation made after the review at the department and i inserted that portion of the matrix at page eight of my brief staff recommended stepping back of the building at the upper floors from north to south to improve the project's relationship to the building. that was not accomplished. but

when we look at the project, it's hard to imagine the guidelines were applied at all. i don't see any changes made to the project. it's as large as it can possibly be, with no setbacks from north to south to accommodate either the small victoria building to the south or the building to the north, which is going to be so devastating. impacted with the loss of light. so it's not obvious to me how the urban design guidelines may have been applied. and i understand that the guidelines are discretionary , but that can't mean that sometimes they're applied and sometimes they aren't applied. that's not the way this kind of discretion is supposed to work. it can't be an arbitrary application standard. the guidelines were not applied to this project and they should have been other policy considerations for up on the

case that you just heard, we have a long standing unauthorized dwelling unit. these are vital part of the city's housing stock and they're worthy of protection in the city is urging in fact requiring the retention of such units. this has been there for a very long time, as you heard, they inherited the tenants. they when they purchased the building. that's something that that they have kept all this time. and you know, it's been continuously occupied since they own the building. very low cost housing . the position taken by the sponsor is that the unit is illegal and not worthy of protection. that shouldn't be the policy that can't be the policy. if we want to keep these units, we would the urban design guidelines be applied differently if the unit was legal. so that's, i think,

question that the board has to ask itself. the issue of solar panels also calls out for some policy considerations, whether or not it's the letter of the law. i know it's controlled by state law, but what you're an adverse decision is going to determine that every older or smaller building really can't have solar panels the opposite direction that we should be headed with these things. we urge the board to grant the appeal and return the project for review and mitigation of the impacts. i didn't go into the lot line window issue specifically because if the planning department found that the urban design guidelines finds requires that the windows be given some consideration, either a setback or a light, well, or something of that sort of thing kind of thing, that you're used to seeing those windows can be legalized. they

could be one of them is at least fixed already. they could be replaced with with proper code windows and the agreement reference by inspector green put into place. and so that's not i don't think that's the issue here. i think the issue here is how are you going to treat the construction of very large new buildings in these existing residential neighborhoods in the mission and elsewhere. so i'm happy to answer any questions that you might have. thank you. commissioner trevino. thank you. thank you for your presentation. and thank you. mr. mr. for, for your comments as well. i was very surprised by mr. green's statement to me about the solar panels surprise, not because i doubt him, but because that's, that's new to me. and the answer is kind of astonishing. we should be a pro solar city. we should be the greenest city in the country. and for the policy reason, i find that really

irresponsible. but i'm looking for legal reasons. can you can you can you other than the is it the urban design guidelines or what is the legal basis for us to be able to apply those pro solar policy design decisions or viewpoints in this case? i think the urban design guidelines, because they call for accommodation, they call for compatibility, and you've got solar panels that have been up on this roof providing excess electricity to the grid for more than 16 years, which are now going to be taken out of completely taken out. and so if you have the transitioning of height and mass that's called for in the urban design guidelines and they can't be meaningless because that's that's what i'm seeing is that they weren't applied at all. there's no setbacks, there's no accommodation. and so if they're completely meaningless, let's remove them from the code. but i

think that's how you get to preserving this unit, preserve, serving this long standing undo and helping out the solar panels . i'm not saying they have to receive 100% light all the time , but they should. they should receive some. right. this is a massive building. what you would call in the old days we'd call a blockbuster. it's right in the middle of the block. and it's huge. so thank you. okay. thank you. there are no further questions. we'll now hear from the permit holder.

can you see the slides. i can go into that. yeah. good. okay great. thank you. good evening, president. members of the board , i know we have additional time here, but we're going to try to not use all of that and know. no, you have a long agenda this evening. i'm tom tunney and jason rose on behalf of the project sponsor. with me is toby morris, our architect, as well as the project sponsor, jonathan wickman. mr. wickman and his family are longtime residents of the bernal heights neighborhood . wickman construction is a certified local business entity in san francisco. they are union signatory contractors among their projects in san francisco schools, libraries, police and fire stations, even bart stations. as stated, the

approved project is located at 2455 harrison street between 20th and 21st streets in the mission district. the zoning is, um urban mixed use and height limit is 48ft with no bulk limits as called for by the zoning and the eastern neighborhoods area plan. this is a mixed use non life science lab space and housing project. it would demolish an existing non historic building on an under utilized opportunity site. the five units are reasonably sized and naturally affordable, with 300 square foot studios and 590 square foot, two bedroom units. this is just the kind of mixed use non retail non office and residential project the city imagined when it adopted the neighborhood eastern neighborhoods plan in the mission. the project seeks no variances and is fully code

compliant. just to summarize the entitlement process for this project briefly, we had our required pre application neighborhood meeting outreach to the appellant full and extensive design review by san francisco planning's urban design advisory team. we had meetings with 24 and united to save the mission rec and park hearings about shadows. the normal 311 notification process, preparations for the hearing by city staff and the staff architect for a doctor filed by appellant in march of 2021. there was a planning commission hearing on the shadow findings. those were adopted unanimously. seven zero vote. the commission would have had an opportunity to weigh in at that time about impacts on the neighbors building. this project has undergone the very lengthy entitlement process at great expense. the city is now seeking

to streamline with a variety of different legislative proposals , including pending legislation to limit doctors turning to the doctor the same issues raised in this appeal were raised in the discretionary review request. yet planning staff at that time recommended approval as proposed with no changes. staff concluded and this is on the slide on your screen that staff supports the proposed project without modification, despite its impacts to the adjacent building and its dwelling unit in this case, the windows of the requesters residential unit are non compliant with respect to both the planning code per exposure and the building code, regardless of whether the neighboring property builds or not. it is generally accepted that the condition of any dwelling unit with respect to compliance is the responsibility of the property owner. a remedy from the project sponsor is not available to correct this

condition. this is from staff solar panels in addition, are not protected by state or local law as doing so would allow them to act as de facto impediments to development. we can talk a little bit more about the policies behind some of these lack of law with solar panels. this is true also a property line windows, as you have heard from staff, notwithstanding these rules, the project sponsor moved the location of the mechanical mechanical equipment and the stair penthouse on the roof to reduce impacts on the solar panels and offered to reduce the height of the parapet by two feet. no small change in an effort to resolve the drop. those offers still stand. with that, i'll turn to mr. morris, who will continue our presentation. thank you. good evening. board members. so the

building is organized in this fashion. it's the proposals. mixed use in the district laboratories space on the lower levels and five small dwelling units on the upper levels. there are two ones. one studio and two bedrooms. in the average unit is 460ft!s. so go for basement firt and second floor are laboratory and third and fourth are residential units. i just looked back at the building permit application number, which is 2019. we did a lot of work with the planning department with you that i included those efforts in our brief and we can go over that more if you'd like. but we did discuss among other things, the setbacks and the potential impacts on the appellant's property and those issues were brought up by the planning

department and in the end they were fine with the project as designed and supportive of it. the appellant has two issues shadows on his pv array and the loss of light to the dwelling, to the unwarranted dwelling unit as was mentioned by tom, we did move the penthouse to the south to get further away from the appellant and cast less shadow on his roof. the second issue that they requested was to pull the building mass away from the appellant's property. and in this case it would mean taking from the second floor all the way up to the top and the third. and then i also requested that we lop a story off of the building to provide more light. the impacts on the building on our project of going forward with those requests are pretty severe. so creating a side

setback is shown in this slide. the red, the area that would be lost. so that would impact the three stories and it would result in say, 500ft!s of loss o the laboratory. and. 375ft!s los to the two residential levels. but more important than that, it would be the loss of actual dwelling units and bedrooms in terms of deleting a story from the building. this results in going from a five unit project to a two unit project because the planning department section 207.6 says dwelling unit mix requirements. and we have one story that has three small units on it and one story that has two bedrooms. so if we took a story off, we'd have to keep two, two bedroom units. so we'd have to go from 5 to 2. also making these light wells adds

additional complexity and construction cost in efficiency . this just makes the building more less feasible. so my clients reasonably rejected to the appellant's requests as infeasible and counterproductive to their efforts to create a good mixed use project. and they asked, why is it our responsibility to make an inferior building to address deficiencies on the appellant's building? and i think that's a reasonable question. so this requires some analysis of the appellant's dwelling unit. there are code deficiencies to the dwelling unit and that are of the making of the appellant, not ours. so in our brief, we talk about the permit history. so there is no reason permit on this property. the permit that was discussed by the appellant filed in 97, they purchased in

97 and in 97 they submitted a permit for a seismic retrofit. and that seismic work to fit represented the upper storey as office space. in 1972. as they mentioned, a permit was pulled to put those windows in the south, facing wall of the appellant's building and also a deck and some stairs on the property that is now the subject property. apparently the stairs and the deck never get got built, but the windows did go in and i would only assume that in 72 they were serving an office occupancy. so i couldn't i went through the permit history. i couldn't find any evidence of any change of use to residential . so the property line is staff has spoken a bit about this. you cannot get light and air from a

property line window that's forbidden in the san francisco building code and ab09 is the instrument that's been used for years. and i learned tonight that actually this predates that goes back to 1969, the full time i've been practicing. these have been the issues. so you also when you when you submit a request to put in property line windows, you need to also record this declaration of use limitation that says, hey, if anybody wants to build next to me, i will close up my windows. so no, none of that ever happened with the appellant's building. all of that is happening on our building. we have a signed and recorded. about nine, none of those problems would have happened if they had been followed by the appellant. the other issue that's actually made me even more important is there's no emergency egress from the

bedroom windows. so so currently , if there's a fire in the appellant's building, they will jump out of their windows onto the vacant lot. but the e requires that every bedroom have a window that gives access to a passage way on the subject property to the exit discharge or to the public way. so there's never been emergency egress associated with this dwelling unit there. they're also planning code issues. there's not complying rear yard, there's not complying dwelling exposure, there's not complying open space . again, just the point if the if the unit had been permitted it would have gone through all the process that we've done that takes so many years. here we are what is it? it's five years. four years since we've been working on this. and also

there's sort of the backstory of what are we doing, making compromises to the production of five units of housing when we have so much demand and so much need in the city. that's been codified in the housing element. so we simply request that you support the project. thank you. okay thank you. i don't see any questions at this time. so we will now hear from you. have a minute. and 50s, did you want to add? i see. okay no, just checking. okay. so we will hear from the planning department. thank you. you have. 14 minutes . thank you. tina tam, for the planning department. two, four, five, five. harrison street is a one story auto repair building in the umu urban mixed use zoning district and a 48 x

heightened district constructed in 1983. the property is not a historic resource. the permits are to demolish the existing one storey building and construct a new four story mixed use building. that's approximately 48ft in height. the project will consist of five dwelling units on two floors over three floors, including basement level of non life science laboratory spaces. there will be two studio units and one one bedroom unit on the third floor and two two bedroom units on the fourth floor for a total of five units. the parents are albert and patricia ukiah. they are the property owners for two, four, five one harrison street, which is the property owner property directly to the north. the appellants are concerned that the new building is out of scale with a neighborhood will block their existing property line windows and cast shadows onto their

existing solar panels. i'm going to go ahead and put up the graphics really quickly just to walk you through the project and the context a little bit better . here's a map of the subject property. it's located on harrison street on the on the east side between 20th and 21st street. the appellant property is to the north and that's hatched in blue. here's a street view of the subject property. the existing auto repair building is set back from the from the front property line and the appellant's property is to the left. here's a rendering of how the new project will look like the building. like i said, it will be about 48ft in height, not including the parapet and the elevator and stair penthouse

. while the appellant's issues are new to this board, they are not new to the department. as you heard from mr. williams on march 24th, 2021, the appellants , mr. and mrs. scioscia, filed a discretionary review request, citing these exact same issues. you saw this aerial earlier showing the subject property in the white and the appellant's property with the property line windows. as well as the solar panels on top of the building. the map below is a sanborn map showing the locations of the rough locations of those property line windows. so if you are considering light wells or a size up back, you'll be needing

to have a total of six light wells in a very long setback that spans the entire length of the new building in response to the requests, the planners scheduled the public hearing, sent out notices and prepared the staff report. the staff report clarified that the property line windows and solar panels are not protected features in the planning code or the design guidelines. neither the planning code nor the building code allows property line windows to count for dwelling unit exposure or to access required light and air. and you heard from acting, building chief matt green. while solar panels are considered beneficial to many, they are not protected by the state or local law and as you have seen on the staff report, doing so would allow them to act as de facto embedded points to development.

however the department did recognize that there will be a change through to these non protective features on the appellant's property and didn't work with the architect to lessen those potential impacts. for example, the elevator penthouse on top of the building was moved and relocated away from the appellant's solar panels to address any potential shading concerns in terms of building scale, the neighborhood is of mixed character. many of the older buildings are tall, two and three stories in height , whereas the newer buildings in the vicinity are larger in scale and taller in height. for example. 240 7 to 2 411 harrison street, which is on the same block as the subject property, is well over 40ft in height. two, four one, two, 2450.

harrison which is on the same street but on the opposite side of the street. it's also greater than 40ft in height. you have also 2501 harrison street, which is a property on the next block. more than 40ft and directly across the street from the subject property is the is the mission recreation center, which looks close to be 40ft two as well. while there are many smaller residential buildings in this neighborhood, the newer developments are becoming what we think are emerging typology in the area. more importantly, their uses and heights are consistent with the intended and anticipated use in height for the designated zoning and height districts. shortly before the

scheduled planning commission hearing for june 3rd, 2021, the doctor request withdrew their doctor based upon the above analysis and the department's previous recommendation for the project, the department recommends that the board deny the appeal and uphold the issuance of the permit on the basis that the permit was properly issued. the project complies with the planning code. it's consistent with the urban design guidelines and is compatible with the neighborhood . mixed character. the project was thoroughly reviewed by the planning department, including senior staff and our staff are architect. this concludes my presentation. i'm happy to answer any questions. thank you. i don't see any questions at this time. so we'll hear from the department building inspection. thank you. you have 14 minutes. matthew green representing the department of building inspection. i won't

need 14 minutes. i believe the demolition permit and the permit to erect the new structure was approved and issued properly. and i recommend you uphold the permit. i've just point the concerns about the unit next door. there's never any permit to actually install a residential use of that property. it was built in 1937. is a warehouse. there's no permits in the entire history to put any residential use in there . and even if those property line windows were legalized, they can't be used for natural air or light for a residential purpose. so while i am. you know, i understand mr. rich's concerns, i do not think he's a valid point here to keep these windows. unfortunately if this building is built as as design,

he'll be forced to fill in those windows and create a proper fire resistant rating between the two properties and the reason the reason is for these fire resistant walls between the two properties is exactly that. to prevent fires from spreading quickly from property to property. so these openings are a weak point in the fire resistant wall and they're not protected and they're not properly so. i have to say the permits were approved properly, and i recommend that you uphold the permits and answer any questions you may have. thank you. no questions at this time. so we're moving on to public comment. is there anyone here in the room who would like to provide public comment on this item, on these items? okay and no, i see someone on zoom. mr. pavelka, please go ahead. hi, this is adam, a d6 resident. i wanted to support the new project and urge you to deny the

permit. the fact of the matter is that we are in a housing crisis. hcd has been very, very specific about that in this project will bring five new units online to the two points that seem to be continually raised. you know, solar panels and lot line windows, the lot line windows. you're talking about the appellant has a property which is built out all the way the appellant is also an architect or engineer based on their profession. they should be aware of the they should have been long aware of these issues. they should not have been new things that were raised to them at this time. and the appellant can fix those by making modifications to their own building. they can build in light walls, they can pull things back. the same issue with with solar panels, even a building right next door that's very tall is not going to block completely solar panels to the south. the sun moves east to

west. those solar panels can be elevated, they can be moved, they can be rearranged to maximize the sun exposure. if this board were to uphold these appeals, you would essentially be allowing anyone with a small building or a low density building to block much needed housing because, oh, i've put up solar panels. you can't put up an apartment next to me or i've got lot line windows, so you need to let me encroach on your space. so that i can live the way i want. i think, you know, the responsible thing to do here is to deny the deny the appeal, uphold the permit and encourage the five new units of housing and the new office space that fits in with the zoning and the neighborhood. thank you very much. thank you. is there any further public comment on this item? please raise your hand. okay. i don't see any. so we're going to move on to rebuttal. rebuttal? excuse me, mr. williams, you have six minutes.

steve williams again. hopefully i won't need the full six minutes. we're not asking for the development to correct code issues on the neighboring building. just accommodate that will allow the existing dwelling unit to survive. they're going to have to make changes in their property anyway, and you know, the questions i asked weren't answered if these were legal windows, would they be accommodated? how we're you know, in what manner was the urban design guidelines applied to this project? because i don't see any. not all the windows need to be saved to preserve this unit. you know, what the architect showed you and what miss tam showed you? those are exact dated. only 1 or 2 of the windows needs to be saved to make the new units that are going to be configured in this building workable. you know, they took the worst possible accommodation and said, oh, we're going to remove it, you know, three feet for the entire

length of the building. and what should have happened was a thoughtful design from the beginning, keeping in mind the urban design guidelines to accommodate the existing building next door, you know, including its lot line windows, including its solar panels. i think that there's been some misunderstanding. i put in exhibit seven, which is the permit from 1972, to demonstrate to the board that these windows were existing in that plan. and so these windows have been in place for more than 50 years. they weren't inserted in 1997 or any other time. if you look at those approved plans from that permit, they're shown as existing in the exact same location that they are today. i don't fully understand that 1972, 72, i don't fully understand, fully understand.

them. okay. sorry i don't fully understand. in 1972, plan, it was built over the it was some sort of fantasy of a giant porch built over the property line. and it was never constructed, but those windows were already existing and they are shown on that plan. the tall buildings that were the newer, tall buildings that were that are on this block, they have setbacks and they have accommodations. you can see it when they get up above 35 or 40ft. there's side spacing and side windows, setbacks along the mall there. and they're down towards the corners. in fact, one of them is on the corner. this this building is extraordinarily high with its penthouse. it's 65ft high. that's much taller than anything out there. and if you include the penthouse, it's 26

or 36ft taller than the adjacent buildings. you know, certainly not compatible in in any way. so you know, i urge you to look at the policy implications of losing an affordable, rent controlled unit that's been occupied for at least 25 years. but much longer. it's just when we became aware of it. thank you for your time. thank you. we have a question from commissioner lundberg. thank you. i just have one. i don't even think this really impacts the bottom line that much, but i am curious about the discrepancy between the actual use of the upstairs unit as as a residential unit, which i believe i believe that's been a residential unit since at least 1997. and the plans that were submitted by your client in 1997 showing it as office space when it was by your own admission, occupied by a residential tenant

at the time. can you speak as to what if i'm missing anything in that discrepancy? there's office space up there as well. the front half the front quarter of the building on the second floor is office space, and then the apartment starts after that. and i haven't seen the 1997 plans, but i have seen the unit and it's like i said, it's office space with an interior staircase that comes up for that office space, but it also has a separate entry from the street. okay. thank you. okay. thank you. no further questions. we'll now hear from the permit holder . mr. morris. i'll be brief. i just have a few points. dba has a somewhat strange policy where they allow the public to go look at the record drawings, to look

at the full history of a project , but we can't copy anything with out talking to the either the engineer or the architect or the owner. we did take the time to go and look at the drawings, the 1972 drawings appear to be the first drawings or those windows show up and that permit was never finalized. it's clear that the sidewalk way and the stairs were never done. so i'm assuming the permit was pulled. they put in the windows. it was never finalized. nobody cared. nothing happened. the 1997 permit clearly shows at the second floor office space, it shows rooms. it has labels, office, office. so there's no indication it was ever residential and that was in the tenure of the appellants ownership of the building. so i don't know when. maybe it's true

that the tenants and the udu was active before the appellant purchased the property. but there's nothing again in the permit record that would suggest that there's a dwelling unit there. the other thing i just simple thing i want to point out is this business of emergency egress. even if we provide added light wells for them, instead of them providing them for their own residential use, they still wouldn't have emergency egress. so i just point out that's kind of a big problem. thank you. thank you. we have a question from commissioner lundberg, one also quick question. i understand the argument as to why a setback isn't desirable here. i am less certain on why a light well, isn't feasible or desirable here, for i would say

several reasons, because it would also provide light to the people who are occupying your building is unless i'm misinterpreting something, there . right. so we have two levels of residential. we have a 25 foot wide lot. we also have an elevator and two stairs. so so it's a it's kind of a heavy lift to get those five units. i explained they're very small. so even a light well and light will have to be minimum three by ten for two stories. and then bigger still. so even a light will or two compromise sizes. the project proposal. okay. thank you. okay. thank you. we will now hear from the planning department.

tina tam for the planning department. mr. williams stated in his super brief and at this hearing that the project does not comply with the san francisco urban design guidelines. yet he doesn't say why we believe the project does comply and commends the project team for working with the staff architect to relocate the rooftop penthouse and reshape the massing of the building. the department supports the project as proposed. we don't believe any design modification is needed. and we asked you to go ahead and deny the appeal and uphold the issuance of the permit. thank you. we have a couple questions from president swig and commissioner eppler. okay i had a question about the urban design guidelines. you answered it. thank you very much . lightweight question. first,

has the has the projects sponsor maximized its potential on on both the building obviously the building envelope, it seems, and also height. so could they have made an even bigger project? thank you for that question. i don't think so. the height limit is 48ft and they are at 48ft. and there are certain features you can have that's above the 48ft height measurement like penthouses and parapets. and they are proposing to put parapets and penthouses on top. this is the maximum, maximum. i'm seeing a lot of maximum maximums. this is what they need to make the project programmatically functional. and that's what they're asking. we didn't study an analysis of what is the maximum build out. that's not our role. but but at this

point, it seems that they've maxed out okay. the second question. maybe i'll i'll make it to and this may be mr. greene's purview, so let's say it were it didn't hamper the building's feasibility and there was the ability to put in a light. well. but doesn't but does that really, while it provides light into those windows and it does it are they are they still illegal or would they still not be legal because because they're facing a wall that hasn't doesn't have windows

across the way and therefore, if there was an emergency required , an emergency exit, they no way out. i mean, it's a it's a light well, to the bottom, which happens to be a dead end. and that doesn't seem so. that doesn't seem very safe. yes. thanks. thank you for that question. i've never been into the inside of the appellant's property, so i don't know the exact makeup or layout of the second floor and what rooms are behind those property line windows and whether those are the only windows to those rooms. i know there's a window to the front and there's windows at the back and they could be other windows in the same room where the property line windows are located. i'll defer the whole egress and safety question to mr. green. but i note that. mr. green so in your presentation, so i don't have to re-ask it if you would. thank you. but in

terms of being a good neighbor, we have seen projects provide light wells and setback to neighboring property line windows because, you know, they want to go ahead and make sure that the neighbors are happy and get to keep their windows. and those are typically for older windows that's been around since the original construction of a building, perhaps. and it couldn't make sense if you let's say your development project was a large size project like the ones we showed earlier tonight, where the width of the block with the lot is like 100 or 150ft. this is 25ft. it's tough. so in this case, we didn't feel like a setback or a light well was warranted for those reasons. okay i just in the previous hearing, showed my excitement that the our efforts on this this panel 13 years ago, i think

i didn't know, not 13 years ago, sorry, eight years ago, we had an impact in that you can't do away with what is a now called a edu. you and i. again, it is ambiguous based on this testimony as to exactly what what windows serve the resident residents versus what windows serve acknowledged office space , but it does pose the question and the developer is not the one who would be doing away with the edu because they're not doing anything to the appeal building the appellant is strictly a result of the law which says property line windows are not protected. we heard that from you earlier. where does the yet there may be a udu in here or at

least the appellant indicates there's a udu in here which brings up the topic of we got to protect every piece of resin inventory possible if it can be legalized. so where does the burden fall when the circumstance like this occurs and illegal window, not illegal windows, property line windows which are not protected are covered up and therefore light and access from what may be a residence are removed. and where does the burden fall on the on the udu? does the should the burden fall on the property developer who is developing a property that complies with the urban guidelines design guidelines? you just said it. that's not my assumption, but

i'll go along with yours and. and it does. does the burden. does the burden fall on them to protect the next door neighbor when the law says the next door neighbor is not protected? or does the burden now fall on on the on the owner of the building which has the udu to and does that trigger a knock v? does that trigger compliance issues for them to correct through the i don't know. light through the ceiling which it is on the top floor or or additional access to windows on the back end of the property which which have windows where does the burden fall on this and should we be concerned with that? thank you. the question is, where does the burden fall in terms of what will happen with this, with this

unit? i don't know whether it's in unit or not. i yeah, we don't know. i'm not right involved in that at this point. if there is a fact a what sounds like a udu. right. because there's no permit on record that we know of that establishes that unit on the second floor at two, four, five one, then we would work with the property owner to at two, four, five, one to find out what their wishes are, whether it's to legalize that unit. it should be legalized. so that way we have proper inspections and people living there are safe, etcetera. and we would certainly inform them of all the possible programs that are available state, local programs to legalize the unit or if they want to remove that unit for whatever reason, because it just physically can't work. we can discuss that and see whether

conditional use authorization is required. i don't know enough about the size of that unit, whether you can still have a unit, maybe a smaller unit or a unit that you know has to change some of the rooms around and configuration around to still be a unit. but it's hard for me to answer that question because i don't feel like i have enough information. so that's, i think, the crux of my question, the burden of protecting that unit, it should not fall on the new the developer next door that is 100% correct. right. and the burden of protecting that unit should not preempt the approval of this permit because of a maybe existing condition, maybe because we still don't know and nor to you there may be existing existing of a of a residential unit next door. so that should not be a concern of ours. my point is should this be a

concern of ours as we are rendering a decision on on on this this development in this permit? i don't want to say it shouldn't be a concern. i mean, we certainly looked at it. we looked at it at the beginning and we talked about it during the review process at the end of the day, we felt like other design considerations can be made to address the issues that were brought up, but we couldn't address all of them. okay. thank you for that answer. thank you. commissioner eppler, we have a few more questions. thank you, commissioner eppler then commissioner trevino. um, i have just a couple of questions about the urban design guideline as a threshold question. the urban design guidelines are they objective standards or subjective standards for development? um, they're when i'm reading it, they seem pretty subjective to me. they're just pretty much guiding principle. what makes sense in terms of compatibility, fitting into neighborhood character. they

don't prescribe like this is what you do provide five feet every time you see a property line, windows on the adjacent property. it doesn't go as far as to say that and do that. so the department has discretion about how they apply. and certainly if there's a number of recommendations, you know, how they get accommodate as a group into a project. pretty much we have a group of licensed architect that work for the planning department and they they meet regularly and they discuss large projects like this one with each other. and they work very closely with the project architect to come up with a design that we can support. okay and this project went the, the urban design guideline process and there were a number of recommendations made some some that were addressed and some that were not. can you talk a little bit about the ones again that were addressed just for clarity? i'm going to go ahead and pull that up. i don't have it in front of me, but i can certainly do that.

then. apologies for making a scramble on this. pleasure. thank you. thank you. i'm going to maybe let the architect speak to that because he's he's been working with our staff architect the longest and can provide you with intimate details of the conversation between the department and the team. yeah.

mr. kim explained that the major accommodation we made was moving that penthouse. the penthouse? right to the south to allow more light towards the building to the north. exactly that. that helps the photovoltaic conversation. yeah. okay so this is a this is a presentation we put together for you to sort of address. you've seen the matrix that the appellant put in his brief. so this is the kind of thing that we do. we analyze as how the heights on the street face relate to the proposal, how you pull lines off of other buildings to address that, how we incorporated the storefront with divided lights to be sensitive to the small victorian

, to the left, to the right. sorry, how we took horizontal lines off of the project. the upper image here that has been shown in various briefs is not where we ended. there were conversations about gathering the windows and making it feel more like bays. so you see that expression of those aren't bays, but they have frames. it suggests that there was a lot of conversation in the department of planners with architectural training. they like to see a base, a middle part and a top part. so they were uncomfortable with this at first. but we were saying, why don't we express the lab as it is? so that's that sort of balcony facing the street. there was a lot of conversation of how the building feels at the street and metro and united state of the mission got in on that in this area that's rendered in orange is going to be a mural. so it's not

a significant amount of work that we do with the architects and the planning department to try to get everybody comfortable that this feels like something that's appropriate. okay. thank you. and mr. ham, just very quickly, the planning department and it's subjective judgment and applying the urban design guidelines thought that these were adequate changes. is that correct. thank you. that is correct. the appellant's brief included a segment of the comments that the department provided to the staff architect , and it reads as this the building volume in the rear would impact light and privacy to the neighboring residents at the rear. so the recommendation is to step back the building, preferably on the second through

the four floors from the north to south to provide relationship . in addition, recommend that the street facing upper windows be divided more to take on more of a residential quality. so if you look at the plans in your in your brief the building that step back from the back, it's not a completely a. four story four plus story building that's with the same consistent height. it steps back at the back at the third and fourth level. and as you heard earlier from both myself and the architect, mr. penthouse and elevator penthouse is also stepping and moved from one side of the building to the other. okay. thank you. thank you. one more question from commissioner trevino. thank you. i just want to follow up on commissioner questions. i think we're thinking along the same lines about the about the guidelines. is, is it is it

correct to use the word compliance with guidelines or is there how strict are they there ? strict. i mean, they are adopted by the city. they were something that we worked on for many, many years. i would say there consistent with the guidelines versus comply. but well, that's that's an important distinction. and i'm glad you use the word consistent because i've been hearing about compliance. but but it also sounds like whether you comply with them or not, if you try if you get five out of seven and the five are more important than the other two, then you're good. you don't have to comply with all their are there must be there's there are things in the planning code and in your work that are stronger than guidelines that you got to do it or not. right. well part of a finding is that we have to make

that it's consistent with the guidelines. and if they're not consistent with the guidelines, for whatever reason, let's say the windows weren't designed in a way that it's consistent with the residential quality or character. we would not be supporting and approving the permit. right. but but within all the guidelines, you can pick and choose intelligent based on your experts and architects as to what what's more important compliance than not. i wouldn't say we would pick and choose and we have to go ahead and make sure that we do go through all the different topics. we start with the context, the neighborhood context, the immediate and broader context, and we evaluate what we think in relationship to the underlying zoning and height district and kind of evaluate and make sure that there's a balance. to ensure that overall it's going to it's going to be okay in terms of fitting in its general in line with what we would like to see for that neighborhood, even though there could be older

buildings in that neighborhood that may be smaller in size, we know that the zoning allows for this type of development. this type of height. i mean, pick and choose using your expertise is absolutely good. thank you. thank you. no more questions. department of building inspection. you have six minutes . good evening again. matthew green representing dvi to address president twiggs concerns. there's an important point. openings and property line property line walls may not be used to provide required light and ventilation, required egress or for required emergency escape and rescue. now the reason for that is these openings can be blocked at any time with the development next door. but a more practical one property line openings at this level have to be fixed. they cannot be openable, so they cannot be used for egress or for

ventilation available for any other questions. you may have. just just to extend. thank you. just to extend that. therefore if there's a fire and there's no other egress, it doesn't matter whether you this is it. and this is, as you just said, this doesn't work. even if there is a setback from the other building , i'm sure the windows can't be openable. and to be fire rated, they'd be wired windows. so even if you broke them, you wouldn't be able to jump through them. so you're so it doesn't matter. doesn't matter. doesn't apply to this situation, doesn't apply to the situation. and therefore the effort of making light wells goes for naught because of that of that situation and those rules for the egress and ventilation concerns. yes. okay. thanks thank you. no further questions. commissioners this matter submitted. we're making a

decision on two appeals, two permits. um, let's start with commissioner trevena. any thoughts. thank you, president. we're going to i want to thank all of the people who spoke tonight about this very important matter. and after spending the time reading the materials, hearing the testimony, i don't find a ground to grant the appeal. at the same time, i focused on these solar panels and i very vehemently opposed the. disregard of solar panels, solar energy and their value to people in the city. and if there's one place where solar panels will work, it's at this location or in this neighborhood may not work in the ingleside may not work in the sunset, but they certainly will work here and they should be more highly considered. however, having

heard from everybody here, it's not a matter that that we can do anything about as a board. there's very little that the planning department can do in in terms of the character of the urban design guidelines. it is our state legislators who and perhaps our local legislators who do not have that same regard for our solar energy. and we talk about the importance of doing all these doing making these changes to bring in housing to keep our community strong. but that's one glaring gap. however that's not what we are have before us tonight. so i would i would i would i would deny the appeal. commissioner lundberg, thank you. and thank you to everybody who spoke tonight. it's i feel like i learned a lot with this with this appeal. i agree with commissioner trevino. and the result i think i don't think there is a legal basis to grant

this appeal. and i heard my fellow commissioners questions as kind of probing where the line ends on on those on any area where we're an appeal, this appeal could be granted light. and i unfortunately heard the same thing that i think they did that their the law is pretty clear. i don't necessarily agree with those laws. i might change those laws. we're in the position to do so. but with the laws in the way they are as presented by planning and by i don't necessarily think that there is a basis to grant this appeal, that being said, i do want to extend my sympathies to the authority as who i believe are getting kind of a raw end of the deal here. i appreciate your acknowledgment and your briefing regarding the happenings with with your former firm and what's happened. i think that gave us some really important context because we've all read the same

news stories. everybody else has. and for what it's worth, and i and it's not worth much because i don't think this can affect our our legal reasoning that we're required to take to decide this appeal. but i absolutely did read the email you received prior to the discretionary review hearing as a threat. and i want to acknowledge that i you know, i would have been very uncomfortable receiving that email as well. and i. i'm on the fence whether even i'm not going to say the next part. but i do want to extend my sympathies. and i'm sorry, you've been put in this position. i don't think it's fair and i don't think the laws are particularly just that you've been up against here. but i do think that ultimately the laws are fairly clear as they sit right now. and for that reason, i would also vote to deny the appeal. right. um i

agree with what my fellow commissioners have said broadly. you know, i am not using any extraneous knowledge to make this decision, but i will point out to my commissioners that the rezoning of this parcel was part of a very, very, very lengthy community process that rezone the neighborhoods. and there have been frictions with that. but it was not done haphazardly and not done willy nilly. what was done as part of a coherent change to zoning in the eastern neighborhoods to ensure that residential areas had buffers from industry and other uses to ensure that light industry could survive as a component of the city mix of business and, you know, around the edges, we do see some some problems with that. and this this does illustrate some of the problems with that that rezoning process . but that said, now, i do agree that the law is very clear on

this with respect to the solar issue, i urge my fellow commissioners to be involved in changes to utilities and utility regulation because not every parcel will be able to have its own solar. but if we could share it across parcels much more easily, that would be lovely. and that seems to be in a dense environment like ours. the way to make solar work well for the most number of people, but with that said, i would move that we would deny the appeal and uphold the issuance of the permits on the basis that the permits were properly issued. thank you for that motion. just to comment, i support my fellow commissioners . the i think the solar issue here is a learning curve for planning to take back with them in further review and recommending further legislation because we just had an example of how the law probably doesn't work, even though there was commentary that the solar panels in place can will be fully

useless and can be repossessed. and for some use it won't be the full use. and but we run into here this is this is one of the reasons i wanted to get clear in advance of this hearing what the laws were with regard to property line windows and solar , because i just anticipated these questions and wanted clarity before we went into this. the this hearing. so i'm in support of the motion. so commissioner eppler made a motion to grant the appeals. i'm sorry. sorry, sorry to deny the appeals and uphold the permits on the basis that they were properly issued on that motion. commissioner trevino. yes. commissioner lundberg, i present swig. hi. okay that motion carries 4 to 0. and the appeals are denied. okay, we've got one, 2.5 hours. anybody need a bio break or should we take it after

the next item, which i anticipate will not be the longest one of the night after the next one. anybody else? absolutely need a bio break? no, i will after the next one. thank you. we are now moving on to item number seven. this is appeal number 23, dash 025. miss mcf 1964 post lp versus the zoning administrator subject property 1964 post street appealing the issuance on may 31st, 2023 to mcf 1964. post lp of a letter of determination. the request seeks to confirm that the current legal use of the property under the planning code is a 12 unit residential building. the zoning administrator determined that the subject property contains 11 dwelling units. this is record number 2022 011140. and just as a reminder, the standard of reviews, the error or abuse of discretion. so we will hear from the appellants first.

good evening. board of appeals members justin zucker from rubin, jason burrows on behalf of mcf 1964 post lp, owner of 1964 post street. while the za attempts to categorize the appeal as paper thin the fact remains that the standard to merge remove a unit has not been met and in this case it was never subsequent formally legalized as a result, as a matter of law, the illegal merger that occurred cannot stand here. for the record, is devoid of a properly executed building permit. merging two units to cause a 12 unit building to legally become an 11 unit building. neither planning when it had authority nor redevelopment when it had authority signed a building permit approving a reduction from 12 units existing to 11 units proposed because neither agency during the time of their jurisdictional authority legally

merged to units. the property's existing legal use remains as a 12 unit building. given the background for the property and considering the permit history contains a lot of inconsistencies. it is hard to make sense of the xas position evidence in the record. the 1958 repair permit and the 1968 redevelopment complies letter establish that prior to redevelopment, obtaining jurisdiction over the property, an illegal merger occurred that was never subsequently properly legalized. while the 1958 repair permit is signed by planning, it did not seek to reduce the unit count. it included an existing and a proposed unit count of 11 and more importantly, the planning signature is specifically qualified that the approval is for auto storage only. no reduction in unit count from 12 to 11 was properly noticed or effectuated by the 1958 repair permit. the 1969

merger permit, while purported to substantiate the illegal merger, does not redevelopment, signed it without any reference to a work list and there is no evidence in the record to support the position that redevelopment reviewed that work list and authorized the work included in it. the only evidence referencing the work list is from davis review completed for days after redevelopment reviewed and signed off on the merger permit . there is no reference to a work list in the merger permits. project description to infer that redevelopment knew of the work list when it signed off on it. the asserts that since the illegal merger has existed for 50 plus years and there have been no complaints that the merger should stand, that is not the legal standard to effectuate a merger, that no complaints were made about. the illegal merger is not relevant to whether the legal standard to merge units was met. moreover, it is not surprising that there

were no complaints for the property. the property was owned by a family that used the merged units. since the 1950s when they purchased the property, the fixtures and furnishings of the merged units are still from that era. the merged unit has never been rented and is tucked in the back of the first floor past the central stairs, which means other building tenants were not exposed or impacted by the illegal merger to know about it , to complain. in addition, the rest of the building was occupied by friends and family. friends and family generally do not rat out their own. the fact that the building was not really open to the rental market general public is evidenced by the fact that there were only four units rented at the time of acquisition, with three believed to be affiliated with the prior owners. the itos here, the merged unit has been vacant since acquisition at and there are no issues of displacement to worry about as raised by the va . the va asserts that every official document since that

time has stated the building contains 11 dwelling units open per hen, i.e. building permits, inspection cards, cfcs, three r's reports. et cetera. closed prime that that is not the case on may 16, 1969, the merger permit was filed identifying the existing and proposed use as 11 units. the merger permit was not signed by planning but was signed by redevelopment on may 19th, 1969. on may 27, 1969, the subsequent to the issuance of the permit alleged to substantiate the merger building permit. number 333307 was filed for installation of new windows as set forth in the 1968 redevelopment compliance letter number 17, what i will call the window permit. the window permit is important for a few reasons. first, it is the closest permit filed after the merger permit, and it is the most likely to reflect the actions effectuated by the merger that was issued a mere eight days prior. so

second, it confirms that the work permitted was limited to that required by the scope identified in the 1968 compliance letter. as noted, the 1968 compliance letter does not identify a dwelling unit count deficiency that required rehabilitation, legalization or rehabilitation. 30 the window permit in line with the merger permits attempted illegal merger identifies the existing and proposed use of the property as ten units taking the xas position. it would seem that redevelopment signature reduce the legal use of the building to ten units. but we know that is not the case. all subsequent building permits note that the use of the property is as a 12 unit or 11 unit building, including a march 28th, 1973 permit to comply with division of apartment and hotel inspections. notice which in interestingly required inspection by dba and resulted in an issuance of a cfc indicating that the property had 11 dwelling units. it is

important to note that the subsequent permit history includes numerous permits with the existing and proposed unit count listed as 12 units. then crossed out with 11 inserts with the housing inspection division, noting that the unit count is 11 based on the 1973 inspection division, noting that there was the cfc. however the cfc for the 1973 permit is neither the 1973 was neither signed by planning nor redevelopment and cannot be supported, cannot support the merger. although inspected and signed off by debbie, tbis approval does not extend to planning code compliance. finally the xas assertion that the scope of the building permit is not strictly limited to the written description on the face of the permit. instead, it includes all the work that is legitimately included in the permit materials is an interpretation of building code. section 106. a 3.1 that the wsa is not authorized to make pursuant to planning code section 307, the xas powers pertain to the planning code and

planning policies and procedures not the department of building inspections because the merger was never legally authorized. this time you can finish your sentence. the xas determination that the property is legal, existing use is as a 11 unit property is an abuse of discretion and should be modified to a 12 unit building. thank you. we have a question from commissioner lundberg. thank you, mr. zucker. i often asked this question with letters of determination because it's often we often hear highly technical legal arguments. but what i what i want to ask you is can you explain to us what's actually at stake behind this letter of determination? what the difference is between an 11 unit determination and a 12 unit determination, one extra unit of housing for someone in san francisco to live in, but they're currently is only 12. there's currently only 11 units, correct? correct and if we were

if you were to agree with our position, that would allow for the restoration of that 12th unit, which would be a separate available unit available for somebody in san francisco to live in, what is preventing that split from happening with a determination of 11 units current? the zoning regulations do not permit density at 12 units currently, the property is non conforming, non conforming with what respected density the density controls of the three district would not allow 12 units. oh so this is you would not be able to split the unit at all? correct. okay. thank you. okay. thank you. no further questions. we will now hear from the zoning administrator. all right. good evening, president swig. commissioners corey teague, zoning administrator for the planning department. i respectfully

disagree with the appellant. i do think their request is a pretty big ask, and i'm happy to explain why. as i laid out in the determination and in my brief, the issue of the merger that had already happened to some effect was called out in the 68 letter of the compliance letter from the redevelopment agency. so this the fact that there was some nuance between 12 and 11 units was clear to everyone at that point in time. the following year is this 1969 permit to do a number of things and the face of the permit does not state that it's specifically going from 12 to 11. but all of the scope of the actual work, including what was in the worksheet and theoretically based on the worksheet, what was in the plans as well. i don't think the plans are in the record. it's very clear that the

physical work that was proposed under that permit was to physically merge these units. it's very clearly called out that work was conducted. it does physically, currently exist as a single unit with one door, one address, etcetera. and that's the way it's been since that time. there's never been any request to change that in any way. now you know, i stated that every official piece of documentation calls out the 11 units post. then i think that was confirmed, except maybe one window permit that was immediately after. i don't know the details of that permit, so i can't speak directly to it. i can say and i don't know if mr. green can corroborate. i do know that historically building permits for things like windows and reroofing are notoriously inaccurate and their unit counts when they when they submit those, because that's not anything remotely related to what they're doing. even if that's the case, again, there's

a plethora of documentation for the last 60 years from the city , a very clear understanding from the redevelopment agency that did have jurisdiction at that time, a very clear understanding that the property owner at that time, that the proposal was to merge. those two units have 11 units, and that's how it's operated since that time. the bigger concern i have beyond whether or not there should be 11 or 12 units is going to be another unit. it wouldn't be more housing. there's no increase in floor area. my concern is if we were here in different contexts is my concern is what if we had this exact same situation and someone in the building did complain and we were here because i had issued a notice of violation to the property owner saying you have to split this unit because in 60 years ago, the face of the permit, during a time where we don't even know exactly what the procedures were for whether or not you make that that clear on the face of the permit. i didn't say this. and despite all the other evidence since then, that

would be a very challenging situation. and i imagine we would determine that to be fairly unreasonable to the property owner. if i took that position from a planning code violation perspective. the other thing that would be challenging about that is in this case right now, the appellant states that there's no tenants in the unit. but in the scenario that i laid out, there could be there could be tenants living in a unit that in this case based if you grant the appeal on those grounds on that similar basis, i would have to determine that, you know, splitting that that unit would be required under the code because the merger was never legal. i don't think that really is the appropriate direction to take. i would have concern about setting that precedent. and so based on all that information, i laid a lot of it out in the brief and the letter. but i'm happy to answer any other questions you may have. but respectfully request that you

deny the appeal and uphold the determination. i'm available for any questions you may have. thank you, commissioner trevino. thank you. thank you for your written in your oral presentation. here i. i have what i hope is a quick question . i believe i read somewhere in the record that the assessor recorder has determined or described this as a 12 unit building. and i'm wondering what one how they'd make that determination or indication. and two, is there is there any weight that we should give to that if, in fact, they did say it's 12? i can check right now to see if it's 12 or 11. i don't remember off the top of my head. i'm i'm almost positive i checked and it's 11 because i, i feel like if it would if it was a piece of evidence now where it said it was or is a formal government determination or description as 12, i think i would have laid that out in there, but i can check that if they do in terms of why i can't i can't give you the exact reason, cause i can only tell

you that it's not uncommon for the assessor's office to have a dwelling unit count that doesn't perfectly match the legal dwelling count because for the assessor's purpose it's just for taxation. and they base that on a lot of information that they can glean from the record. et-cetera and it doesn't. they don't because it's for taxing what's actually there and not what's legal. they don't kind of get into that. and then if you want to add anything, please do it during rebuttal. i'm that's a good answer and i'm happy to look at that for rebuttal and get back to you. on what the current record from the assessor says. thank you. okay. thank you. no further questions. is there any public comment on this item? is there anyone on zoom for public comment on this item ? i don't see any hands raised, so we will move on to a rebuttal. mr. zucker, you have three minutes. may have the overhead, please. this is the

assessor's records from the property information report, while albeit from november 14th one. i reviewed it when submitting the load. i don't believe it's changed and it identifies clearly that there are 12 units in the property which speaks to the nature that this property has been taxed and assessed as a 12 unit building and is still legally a 12 unit building. you know, i still go back to the statement that the claim that the work list authorized. this is an interpretation of the building code that is not authorized by it's not within the purview of the xas authority. you know, there are a number of building permits that have various things and i do agree that sometimes there are inaccuracies in building permits, but that actually shows that the permit history in this instance is very unclear. the other thing to note is how it's been operated is not the standard for whether an action was legally done for a merger. while, as we heard earlier today, that is part of the standard for whether there

is a udu. that is not the case for the merger of a unit. no. and then can i have the computer overhead, please? and just speaking to the comments regarding the use potential use of the property as if it were to merge, i would note that the currently the merged unit is very irregular. in 1937 there was an add on two unit add on that add on was pretty tacked on i guess is what the planning code planning department would call it. and as you can see, it's really the bedrooms are nested. it doesn't have a closet . so it doesn't meet the technical definition. the two unit, this is actually better served as two units. there would be a family sized unit. there would still be a two bedroom plus den that den is the unit that is over here without a closet. the other thing that's really important to note in terms of it being a family unit is that if it were to remain, it

would be naturally unaffordable to a family based on the square footage size splitting these up into two units creates more naturally affordable units. the other thing to note is if it were to remain having direct access of the bedrooms in the back does create a safety hazard for the children. if they were to live there and the kitchen is relatively small to provide for a family, you know, based on the evidence in the record, it's clear to us that the 11 units were never properly effectuated. it's always remained as a 12 unit building, and that we do believe that a 12 unit building better serves san francisco's housing market and stock. thank you. that concludes my presentation. i'm available for any questions. thank you. i don't see any questions. we will now hear from the planning department. okay. thank you, president. commissioners corey

teague. again, just to verify. yes, the assessor and tax still listed as 12 units, not as 11, just to confirm that. yeah. i mean, i feel like the issues are still are still the same, the kind of nature of the unit and what the potential would be by splitting the unit is not really the issue. this isn't a policy. this is it like a conditional use authorization requesting for the better of the city to split the unit. this is a technical question as to whether or not there's legally 12 or legally 11 units. i mean, i think even in part by the request to the czar to make that determination, there's an understanding of jurisdiction under the planning code to make that call to determine how many legal dwelling units there are under the planning code. i would note and mr. green can speak to this next, if you'd like, the there is also a unit verification

process through dbi as well to go through. you can work with dbi. they go through all the paperwork, all the inspections, everything to try to determine from therein what the legal number of dwelling units are from the davis perspective. so that is an option that they have as well. there's nothing in the city charter that would require dbi and planning to agree on the legal number of dwelling units. but you do have that process. you can do the letter of determination here. you can go through a unit count verification in a new three r process there. i mean, i don't think any of that changes the fact that there's just no question that there was an issue about the unit count called out in 68 by the redevelopment agency. there was a permit in 69 that included in the overall scope of the permit, the merger of two units, which was physically built out. and cfc does 11 units. and then every every permit except for maybe that one window permit since that time, three r report, cfc s

all say 11 units. so it would be a big switch 60 some years later or maybe 50 some years later to flip that. i think it's maybe a little disingenuous. on the property owners perspective at this point to ask for that kind of reversal based on the permit and documentation history since 1968. but i'm available for any other questions you may have. president has a question. okay trying to help get you to tell me get clear on this. and i want to start in i'm trying to be somewhat meticulous. so for 50 plus years, this has been the unit which could allegedly be two units, has been one unit. correct in the in that unit, i am assuming that there is no evidence of when it was two

units. there is no second kitchen. there is no ventilation for a second kitchen. that's always been my this. the earlier today we were talking about the edu and the in in my years on this panel. the what makes a undue is not the bathroom. it's not the closet. it's not the bed. it's the kitchen that makes it a living unit. because without a kitchen, you can't live there. that seems to be the guideline that might be right. wrong right or wrong, but that seems always to end up as the defining thing. so in this in this unit, as it stands right now, there is no configuration for a or evidence that there ever was a kitchen or an accommodate for a kitchen, correct? not that i'm aware of. again, originally this was these were two separate units with two separate entries. the work that

was done back in the 60s and 70s related to that 69 permit was literally to close off that second entry and only have a single entry into the unit, remove one of the kitchens, create that interior connection essentially physically merge this into two units. so there's no kind of separate even entry for a second unit in terms of kind of what they've done in the interior there over the years. i don't have that level of detail, but there's nothing to indicate there's any issue. there are understanding, and i don't know if it's disputed by the appellant is that physically and operationally, it's been a single unit since that time. all right. and you just preempted or anticipated my second question, which was one of the other things that when we're trying to determine whether it's one unit or two units is two entries or two addresses, is so in this case, there are not to addresses . there are there is one

address. and it's been that way for 50 some years to my knowledge. it's only addressed for one. there's not separate addresses listed on the assessor for the different units and stuff, but i'm i've not been made aware of any indication and that the appellant has not provided any information to that effect that would kind of help support a claim that it is somehow actually 12 units instead of 11 and along that same line of questioning are there is it clear that there are two separate entries that would indicate that there are two units? or were it sometime there was some time a wall? and this is very clear on this side because there's an entry here that was one unit. and then on this side where there there could be a wall separating these two physical spaces. here's another entry here that would indicate that there are there are two entrances to this one unit that doesn't exist. i don't

know if i can speak to that level. i do know that there previously in 1969 or before, there were two separate entrances to two separate units, there was work done to that entryway to both units to create one combined. and there's only one entrance into this unit. so physically, if you walk out there and went into the hallway to that unit, when in the unit, it's just one unit, there's one entry, there's no second door that's just been closed off or, you know, paneled over or something like that. it's essentially one it's built out to be one unit. i don't know what the occupancy has been. i think the applicant or the appellant referenced that no one's ever actually lived in that merged unit. i don't that haven't been brought up in the materials before. i don't know what the occupancy has been in that unit, but physically, since this permit was filed, it's been a single unit and resulting in a

total of 11 units in the building and if this if this building was being permitted as a new building today, as the as the owners, the appellants counsel stated that it wouldn't comply because it would have to much density. yeah the maximum density for this site based on its light area is either 9 or 10 units. i could double check that, but 11 or 12 either would be over density. it wouldn't, it wouldn't be permitted. and your concern i'm interpreting, but i'm asking you to restate your concern is that this may set a precedent so that in the future there there would be in a similar situation, a another, an another occupant within the

building who could say, wait a moment, you know, this this was done illegally. and i'm i'm asking i'm i'm claiming to dbi or to planning that there should be a notice of violation that there was an illegal separation of what was two units. and it should revert to two units and if that were to occur in in a like situation where there's one unit and there's a family living there, that that would kind of be chaotic and cause in some some level of injustice is that what you're is that where the precedent issue was? yeah, i mean, the precedent issue is definitely just if it was a flip situation instead of the zoning administrator being asked, is this 12 units instead of 11? if the zoning administrator, through an enforcement process was saying, no, this is 12 units and not 11, and you must divide this unit into two units and if

they happen to be occupants that would make that determination that much harder. i also think even if there weren't occupants, you know, me making that violation determination and requiring a property owner to split a unit that seems to be permitted and has existed as a single unit for over 50 years would be a very challenging position to take in that context. and but if the outcome here is to overturn this determination, then that would create that likelihood, which i think is i think is a is not a good thing. so those are the those are the two pinnacle issues are that one, that would create, according to today's standards and over density in this building and to a precedent that would be dangerous because if the shoe was on the other foot, this would be really this

would never fly. and if somebody appealed that to us, odds are that we would say, no, no, no, no, you can't. you can't kick that family out or you can't make that that those units. yeah, the only clarification i would make there is that i don't take any position on the density of this. i mean, we have lots of buildings in the city that were built to a higher density than what they're zoned for now. so whether or not from a density perspective, whether or not this is legally 11 or 12 agnostic on that issue, it's really just because that may be a motivating factor for the property owner, because they can't they have no other way to get to 12 units. there's not a motivating factor for me. this could be a question about a 4 or 5 unit building on the same property. and it's still the same issue. okay. and but all that aside, we're in a housing shortage. and here's an opportunity to pick up a unit of inventory in the city of san

francisco, which seems to be the priority of the board of supervisors. the mayor, you know, everybody, everybody, everybody. so, you know, the question would be why wouldn't you? why wouldn't planning with open arms grasp this opportunity to add a do anything possible to grasp another unit of inventory? sure. that's what i'm wrestling with versus what i just was asking you about. sure i mean, i think there's two things to point out there. one, like my determination is not a policy call. right. is it a technical call? obviously if we made every technical call based on the kind of strong policy positions of the day that would have a lot of impact on those calls. i'm trying to look at this based on the information and the record and not from that perspective, but on the policy side. and i put this in my brief again, this would if they split this unit, which it is a larger unit, but

if you split this unit, it's again, it's going to create a net increase in housing units, still the same amount of floor area. there's no increase in bedrooms. and while it may not be like the perfect unit for like the typical san francisco family, which i'm kind of part of, which is like two parents and one kid, there are a lot of other families as multigenerational families. there's a lot of support in the general plan for creating and preserving family size, housing and has like this that's a little bit atypical. tends to be more affordable because it is harder to lease out. so all that aside, i don't think there's a huge housing argument here either way. but i also think that whole argument is kind of moot because that's not really this isn't a policy determination. this is a technical determination. thank you. thank you. you can no more questions. thank you. i understand your question regarding the kitchen. from the

evidence in the record. okay i understand. i would like to address support and rebuttal. good evening again, matthew green, representing dba. i wasn't prepared to speak specifically on this case, but i can give you some background on the legal use of properties, the legal use of a building is established by the issuance of a certificate of final completion by the district building inspector and the certificate of final completion. the only vehicle to issue one of those is a valid building permit. so we determine what the legal use is by the last valid certificate of final completion. not every building permit gets a certificate of final completion . you'd get one for a new construction or something like this for you're adding or subtracting units or vertical additions, horizontal additions, something like a window permit or a kitchen remodel. they wouldn't get certificates upon completion. so the cfc is a very important legal document that carries weight throughout the decades. we do have a process in place that if somebody disputes

the issuance of a cfc 50 years ago, they they can request what's called a report of residential record, a3r report, and then they can dispute the findings of that report. and what will they'll do is they'll present a package to our senior building inspector for that area. he'll go out there and make a determination if he agrees there'll be a new building permit with the new certificate of final completion for the changes there. so is that process. so so given that that 50 years ago when this was combined, your your point would be that's when it was combined because there was that permit was approved. there was a certificate of occupancy or there was a vinyl. and that codified this building as, as not 12, but 11. and. rather than so even sorry. so rather than a

letter of determination, the vehicle to see if this could be reverted back to what it was before would have been the process that you just described ? no, i'm saying the vehicle, if you thought that that certificate of final completion issued an error 50 years ago, we you know, it's not it's not written in stone. we do make mistakes and we'll acknowledge the mistake. and there is a process here to review it. you know, previous permits and previous cfcs. and if we there is a mistake, we will correct it with the new building permit. and a new certificate of completion. so by virtue of the fact there was a cfc by virtue of the fact that the that that unit was adjusted 50 years ago and agreed upon by everybody at that point that it was one unit then by by that act, by the by

the nature of that unit being legally in place, then that building went from 12 units to 11 units and therefore, regardless of whether the city assessor says it's still 12, that's just a clerical potentially. by the way, i hate to break it to you, but the city assessor's department does make clerical errors. sorry for the snarky, sarcastic comment. i had that experience just this week. it was harmless, but by by virtue of the fact that there was a cfc that somebody from dbi or planning said, this is a real unit and therefore 412 became one. and you're a consideration at that point that that was the tipping point at which this building went from 12 to 11. and from that point, it should be considered 11, correct. it's 11 unit building until unless

there's some other building permit adding a unit that goes through the normal approval process, that would be the basis that you would support the planning report department and saying that their discretion at the use of their discretion on making their finding was was not was not faulty or no nor out of bounds in any way, shape or form. correct okay. thanks. thank you. no further questions. commissioners. this matter submitted. sorry right. so i mean, i do find this to be a slightly complicated issue, right? because we are lacking the smoking gun of approval. what we have is, is just a lot of smoke and not what it's exactly producing it, although we do have a permit that looks like it's affecting a unit merger and as we just learned, that was signed off upon by the department of building inspection at that time. so i'm inclined to deny the appeal on

that basis. it seems as if we are we have enough of a record to see that the legal use of this building has changed. i don't want to talk about the hypotheticals because they're not before us. but you know, i do point out that if things were reversed, we might be looking at some of the other legal doctrines that we go to from time to time about whether the city would be stopped from asserting a 12 unit building after it has put in the three r report and everywhere else, except for the assessor recorder's office. perhaps that this is 11 unit building. i am thinking about the converse there, but i don't think that that's particularly dispositive or helpful when we do have the building permits that have been approved and had been completed and signed off as that way. commissioner lindbergh i

generally concur with commissioner eppler. i you know, i'm very aware that the standard here is error or abuse of discretion. and in order to find for the appellants in this matter, we would have to find that mr. teague could not have reasonably come to the conclusion that he did. and i, you know, even if it were our opinion that it were 11 units, which i or that it were 12 units rather, which i don't necessarily share based on the record, i still don't think that would be enough to grant the appeal because we would have to find that mr. teague could not have reasonably he come to that conclusion. and i think he reasonably did come to the conclusion. i think he potentially could have come to the other conclusion. but that's that potentiality is not does not make an error or an abuse of discretion. so for that reason i would vote to deny the appeal. mr. thank, thank you, president

swig and i thank the everyone for the presentations today. i just on the issue of abuse of discretion, i, i, i don't think it is as stringent as as commissioner lambrecht described on another day. i think it would help to get from the city attorney some consistency on the issue of abuse of discretion in this particular case, i believe it's very clear it's what is actually there is that an in a building? the appellant said. so in on november the 14th. in the letter to the zoning administrator, the merger of the two units at the property did not occur until 1969. that's s the fact. that's the reality. 11 units. yes there's documents. the documents go back all the way to i saw the name ellis socks in the in these documents . i haven't seen that name since i looked at my birth certificate back in the 1950s. this is this is you can the appellant gives us all these documents of the

redevelopment agency and everywhere else. the reality is, is what is it? it's 11 units. yes there's a document that says ten. yes the assessor says 12 zoning administrator has done his duty to establish that it's 11. there's no dispute that it's 11. and for us to set that aside , i don't think there's any basis to do that. and i would uphold the zoning administrator's determination. would you like anybody who wants to make the motion, who feels strong enough to do it? i would move to deny the appeal on the basis that the zoning administrator neither erred nor abused his discretion. okay. so we have a motion from commissioner lambert to deny the appeal, upholding the load on the base of the wsa. did not error abuses, discretion on that motion. commissioner trevena i. commissioner eppler i present. i so that motion carries 4 to 0 and the appeals denied. and so i believe we're going to take a short break. thank you for your

patience. okay. we'll be back at 820. thank you everyone for your patience. okay. welcome back to the july 26th, 2023, meeting of the san francisco board of appeals. we are now on item number eight. this is appeal number 23 016 2700 holdings, llc versus the zoning administrator appealing the issuance on march 28th, 2023 of the zoning administrators interpretation of planning code sections 102 and 270 regarding measurement of bulk and planned dimensions unless specified elsewhere in the planning code. the maximum plan dimension as per specific bulk limits apply within the exterior walls of each individual building or structure. such that a single building may not have multiple vertical elements. example towers, etcetera that collectively exceed the maximum permitted plan dimensions. however, separate buildings on the same lot will have separate

plan dimensions for the purpose of measuring bulk limits. note on may 17th, 2023, upon motion by president swig, the board voted three to 0 to 2. vice president lopez and commissioner trevino absent to continue this matter to june 21st, 2023, so that the full board could hear the case. the request for the continuance was made by the appellant and agreed to by the zoning administrator on june 1st, 2023. the matter was rescheduled to july 26th at the request of the appellant with the agreement of the zoning administrator and i guess we have two initial matters. one, i see president swig that there are 57 people in the public comment queue, so as as we start at the beginning of setting parameters on public comment, i love to have full public comment. at the same time, i don't think it's in the best interest of the of the public or the commissioners to be able 2:00 in the morning at 57 people

times three, 150 minutes, that's a that's almost three hours. and that would be an obligation. so as i as i forewarned, if there were over 20 people in the queue , then i was going to we've already made the accommodation to lower it down to two minutes. but i for one, if there were over 20 people in the queue that i reserve, the opportunity that cut that public comment to one minute, which i think it's wise and so i'm going to do that. secondly. in you know, this is a highly publicized has been a highly publicized item. i like many of you who still read the san francisco chronicle on a daily basis, looked on the front page and saw the publicity related to this item. and recognized not the issues of the

item, but rather the public fervor that could be developed related to the pluses and minuses of this item. and in general, i'm talking about the project and, and with that energy comes a lot of public comment, a lot of opinions. but those opinions are some of those opinions and some of what we're hearing tonight or what we're trying to determine tonight are are don't align. and so when they're when they're issues of traffic, when there's the issues of noise, when they're issues of light, where there's all the stuff that we that are all the stuff that just really really important. if we were talking about a building permit, if we were talking about a site permit , if we were talking about other

permits, those discussions would be important. they would be valid. and i'm sure on this item they will be fully discussed down the line. but i but i wanted to make sure that we didn't digress into issues that were not not for discussion tonight, but rather kept it very focused on what the issues are in the zoning administration's administrators interpretation of planning code, sections one and two and 270. so in that i would i would like to advise the public that this is not a hearing about a building permit. this is not a hearing about a site permit. nothing is going to get specifically built as a result of what occurs tonight, but rather there is this discussion on the interpretation

zoning administrator interpretation of the planning code sections 102 and 270. so if the commentary has to do with things that would normally be related to a building permit or otherwise, i. i i would advise you this is not the forum for that tonight. and there will be forums for sure if this moves forward to discuss those issues at and i thought it was important for the benefit of the public and for the benefit of the commissioners to have a clarification from the city attorney tonight about what we're talking about, what what our discussion should be focused upon and what our what we should be discussing towards a resolution of the zoning administrator's interpretation of planning code sections 102 and 270. so with that, i'm going

to ask the city attorney to help me here and keeping this discussion tight, focused and on point. president swig, i think you've summarized it well and i agree with what you said. so what's at issue this evening is a letter of determination, which is a document that is issued by the zoning administrator that offers guidance regarding zoning regulations, the planning code or specific development proposals. in this case, the letter of determination is not specific to any development proposal. it was issued by the wsa to provide guidance on the interpretation of planning code sections. as you noted, 102 and 270. so at issue in this appeal is a relatively narrow question whether the zoning administrator aired or abused his discretion in the interpretation of code sections 102 and 270. addressing

the measurement of bulk and plan dimensions. the appeal, as i noted, does not directly address any specific development proposal for 2700 sloat and the public's concerns regarding the specific a specific development on this site. for example, traffic, infrastructure, environmental effect sites are not at issue in this evening's appeal. the public would have an opportunity to address those issues if or when a specific building permit were issued. but that is not where we are this evening. thank you. then we can proceed, please, with the hearing. okay. thank you. so we will hear from the president if i if i may. sure. very very briefly. i appreciate your taking those efforts to educate the public as to what this hearing is about tonight and the issues before us. it would, i think, help a little bit more if

either you or the city attorney or the planning department say on the issues that you say, where will people be going? is it the planning commission? is it someplace else? the board of supervisors, the myriad issues that we've that we've heard about and you've referred to, where do they go at some point in the future, i recast your question. then i'd say the same thing if i could. if the project if this project, which is not a project because we're not reviewing a project tonight, we're reviewing interpretations . if this project becomes a project, could you give us and maybe the planning department answers this question as opposed to yourself, what will the path be? okay, because there is no project there is no i don't see any drawings. i don't see any renderings. i don't see anything. all that we're talking about today is an interpretation of code, and that's what we're

talking about, correct? that is correct. okay so that's what we're talking about interpretation of code. but should the interpretation of code enable a project? what's next? and where does the then where does the public go? where is the where's the first submission going to happen? where is the first feedback from the public on the project? should it emerged be allowed? can can, can you? i would volunteer for mr. teague to answer that question. i have some thoughts, but i think he's probably in a better position to talk about where is the path, where's the critical path and where does the public enter the fray to comment if indeed there there is a project in the future because there is no project right now. there's an address in commissioners court zoning administrator. i think this may be a first for me. questions before i present, but i'm happy to answer the there's kind of a

broad answer and then there's like a more wishy washy answer because of course, right now any member of the public can submit comments or reach out to the department directly. anytime we have applications in, that's always an option. the questions of what's going to be the approval process for any particular project like this going forward and what the appeal options are going to be partly depend on how the project moves forward. and under what type of programs and this project has switched a little bit over time between programs and i don't know, i mean, right now it's still like the early review process and the project sponsor could, you know, change gears and pivot and go try to use a different provision of local or state law to do a project. so it's i can't say exactly what the options would be, but to the larger point, yes, this is not an appeal related to that project, that project, whatever path it takes,

there will be opportune cities for input and or appeal depending on the type of program it uses. those opportunities may be somewhat limited, but there will be some opportunities there and any member of the public would be able to reach out to the department and the project planner to determine that kind of early and keep track of it. and later on in the project, it could be that it's back here before you. this project started out as a homeless project and that would be appealed to the board of appeals. that's not where it is currently. but again, it just depends on where how that project moves forward to determine what the actual appeal paths and approval process would be. i hope that answers the question. i know it can't. it's not a perfect answer, but i don't think i can give a perfect answer in the where the project is right now. and so comments on the specific project tonight, there is no specific project. there's only the a question of your interpretation of these two sections. that's it. the issue

before you tonight. yes. is that narrow right. thank you. okay thank you. does the city attorney have anything to. no offer up? i would thank mr. teague. okay and i will ask before we move on, is are my fellow commissioners clear on what what we're doing tonight? and that is opining, commenting , finding something related to the interpretation, the zoning administrator interpretation of these two code sections, correct? correct but i do believe, with all due respect, presidents, it's important for the public to know to the extent that we're saying you don't need to comment tonight, there's going to be another chance later on somewhere. planning commission for to supervisor other us again that that they understand that so that they don't feel that they have to that this is their last chance because some have felt said that stated that in good faith and we

just wanted to be able to give them that specificity. and i appreciate you accommodating that request. and the director doing so as well. and based on what i heard, i don't want to belabor the point, but i think it's important just so the public can have a vision of what the paths look like. and i use the word paths, not the path is that right now we're on a single road where, based on what the sign says up ahead and the sign is going to be written, maybe tonight or at least in influenced that that potentially there are one, two, three, four, five. who knows how many forks in the road and nobody can foresee those forks in the road until we get past this first step of what that what that sign is going to say up ahead as to the options of the direction for

this project. so it's very, very unclear, very ambiguous, and we can't correct that tonight. we can move it towards what that sign is going to say. is that acceptable to you? yes president swig, thank you. yeah okay. thank you. i'm sorry. thanks are we ready to begin? yep all right. we'll hear from the appellant first. you have seven minutes. all right, good evening. melinda sadjadpour from rubin. jason rose. i'm here on behalf of the appellants, the interpretation. we have a powerpoint presentation as well. the interpretation before you claims for the first time that a single building can't have more than one vertical element above a base height. we ask that the board overrule this as error or abuse of discretion for a number of reasons. it airs by creating a new bulk limit that simply

does not exist under the existing code. it's inconsistent with how the city is applied the code for decades. it's contrary to the intent of the bulk code in general plan policies. and finally, it will violate state law for first, let's look at the specific code section of issue. this is planning code section 270, which sets bulk limits that apply to buildings and structures citywide. and you can see in the a bulk district this highlighted, there are no mass restrictions to buildings below base of 40ft. above that, buildings must meet maximum length and maximum diagonal dimensions. next slide planning code section 102 defines these maximum plan dimensions as linear horizontal dimensions of a building or structure at a given level taken between outside surfaces of exterior walls. but importantly, neither the bulk chord know this nor this definition limit how many tower could be on a single building as long as each comply with the maximum length and maximum diagonal dimensions under 270. next slide please. the z has reasoned that only one

tower is allowed for building not because of the plain language of the code, but because it would support general plan policy goals. the bulk code, which aim to limit bulky building walls above a base height. but this specific limit isn't necessary to achieve that general policy and the actual language of the general plan suggests otherwise. policy 3.6 of the urban design guideline element states that if two or more towers are built in a single property, they should have separation. but the precise form of a building or buildings containing those towers should be largely left to the developer and architect. this language expressly contemplates multiple towers on one building and is not addressed in the interpretation. next slide, please. here's a visual with the bulk code currently allows. this is a approved and built project at 1634 pine street from 2014. it's one building with a shared ground floor and two towers in its final approval, motion planning applied maximum plan dimensions individually to each tower. but the interpretation before you would allow only one

tower per building regardless of the size of the site or its design. there's a reason the plain language of the bulk code doesn't require that it unreasonably constrains development. the z also asserts that there's no guidance or methods to apply maximum plan dimensions to multiple towers on one building, but that's not true. many standards apply that scenario, including the maximum plan dimensions we're looking at right now themselves. setbacks fire code, separation design guidelines and tower spacing standards. when we pointed that out, the z responded that the interpretation might not apply to districts with tower separation standards because they suggested intent for multi tower development. but the interpretation provides no such exception and neither does the code language. those districts still apply maximum plan dimensions as defined under sections 270 and 102. there's no distinguishing language that says, unlike in other districts, he or maximum plan dimensions can apply to each tower in the same building. that language isn't necessary because the bulk code already allows it. next slide, please. the ten precedent

projects we highlighted in our brief show a clear pattern of the city allowing multiple towers on one building and applying maximum plan dimensions to each. here are just five of those examples. none received bulk exceptions from this issue because it wasn't needed. first, you see, here is rincon hill one, rincon hill. next slide. the metropolitan on next slide. ocean wide center. next slide eight 10th street. next and 201 folsom lumina next slide, please. the z has shown no clear history of the city applying the bulk code as the interpretation suggests. in fact, the ppa letter issued for 2700 slope did just the opposite. it said that bulk dimensions apply to each tower, not building an sf has submitted a 2018 email from the wsa in which he acknowledges that other planning officials read the bulk code to allow multi tower design and that he was torn personally on how to interpret it. if the language of the bulk code clearly intended this limit, there would be no reason to be torn in

interpretation. next slide. secondly, the interpretation rises to abuse of discretion because it goes beyond providing guidance to creating a new bulk limit that is effectively rezoning and will have a number of undesirable consequences. that conflict with code intent. this could reduce residential density at 2700 as low as well as many other pending and future projects citywide and something of that import shouldn't be addressed through a quick interpretation that's posted online. it should be handled through a zoning amendment that allows for proper vetting and public participation. next slide, please. third, the interpretation violates the housing crisis act, which bars city from enacting any development policy standard or condition that reduces residential capacity below. it was allowed in 2018. unless there's a concurrent up zoning. this interpretation does just that. it would also violate the order's applied to any project that has an sp 330 application on file because it creates a new bulk standard that wasn't known or knowable at the time of filing the wsa asserts that this isn't an issue because the

interpretation won't reduce residential capacity to what was assumed in this year's housing element update but even if that's true, which has not been established or studied, it still wouldn't cure the violation. the hca prohibits reducing residential capacity beneath what was actually allowed in 2018. assumptions in our recent housing element update are irrelevant. next slide, please. and finally, the interpretation would violate the california environmental quality act. it constitutes a project under sequa and will have foreseeable adverse environmental impacts reducing residential density potentially on site citywide. no environmental review is done here and before it can be adopted, the city must first comply with sequa. thank you. and i'm available to answer any questions. okay thank you. i don't see any questions at this time, so we will now hear from the zoning administrator.

okay good evening, president swig again, commissioners corey teague, zoning administrator. again, the appeal before you tonight is an appeal of my interpretation related to how bulk is measured in the planning code. this can be a very technical issue. it's easy to get into the weeds. i think there's a lot of potential grounds for conversation and more questions. i'm going to try to keep this at as is not in the weeds to begin with, and we can work our way in kind of as needed. as always, i'm definitely available for any questions you may have, but i think first and foremost, it's just helpful to understand like what are bulk controls and why do we have them, you know, as many of you know, like height limits are pretty straightforward. we have a height limit. the building can't be taller than that bulk controls are something that goes hand in hand with our height limits and essentially says above a certain height, the

overall massing of the building has to be reduced or it has to be there's a maximum to what that massing can be. and this is very typical in a lot of cities. you get at a different ways. the concept being as a building gets bigger and taller, all that mass, if you don't shrink it a little bit as you go up, it has more and more impact on light and air. shadow et-cetera to surrounding properties, streets et cetera. so there's a lot of different cities, including san francisco, that for many years have have some version of controls that require taller buildings to reduce their mass as they get taller to address that issue so quickly on the overhead. this is not to any particular scale and is a little bit crude, but you can see on the left here especially, you know, that's just like an example of a building for light build out to a certain height and then at that height, there's a minimum dimension. it can't it can't be larger than that going up. and it could look something like that. again, this is based

on the general plan, the urban design element. i called that out in my in the letter or in my brief. so i won't go into that in detail in terms of why that concept is important, of having bulk controls so that the massing is reduced as you get higher and i think it's important to then ask the question, well, why was this interpretation needed right. and as was referenced, this this issue first was raised that was known issue being raised to me at the time i was the deputy zoning administrator in 2018. at that time, the zoning administrator, scott sanchez, and i discussed it. it was a hypothetical question not related to this project or actually, i'm not sure what it was related to. and there was some discussion back and forth. there was a reference of how different people thought what which way it could go. and there was that conversation. it was left there in 2019 when in this particular project began filing

initial applications. the question became more real. we need to make a call on this particular case. the email chain that was referenced. you can see that there was deliberation because that's what we do. and ultimately by email and internally in 2018, we determine the interpretation that's before you today. ultimately time progressed. at that time, this project was a home project. it was a much smaller project. it wasn't a state density bonus project, but as time progressed , it became clear this needed to be an issue to interpret. and so it was very clear to everyone how we would measure bulk and so this interpretation was one of several interpretations that was issued in a batch earlier this year before it was appealed. this issue. the other reason it was necessary is because this is exactly the kind of issues that need interpretations, right? the code, i think, lays a very clear framework for landing on this

interpretation. it doesn't explicit state this in the code and there was clearly some question about what was the appropriate interpretation of this section. so the fact that there is not perfect consistency over time is an exact reason why you need an interpretation to ensure consistency that everybody's on the same page about what the requirement is. so that's kind of what bulk is. briefly. that's why this interpretation was needed and issues and then what was the basis for the interpretation? i think you all know the kind of deliberate and measured process that i use when i'm making a determination or an interpretation. and that was the same thing we did here. i talked with a lot of other colleagues and folks in the department who had expertise in this, looked at a lot of other examples, but also just looked at the plain language of the code, like the plain language of the code says that when you get to your where the bulk applies, that there are maximum dimensions for that building above that height and

that maximum dimension includes every part of that building above that height. and if you look at the bulk controls in the code, and i'm happy to go through line by line if you want, you know, it's very clear that the bulk controls apply to a building and a building that has a podium and a tower. the tower is still part of the building. if you have a podium and two towers, they're also part of one building. so if you look at that, that's relevant. the planning code also has more language in sections 271 272. happy to go into more detail on that. that kind of layout height in bulk more clearly. also clarify that in the case there's ever any conflict in that case, the more conservative and restrictive provisions should apply and the other point is that the planning code does not prohibit projects from exceeding their bulk. the planning code

provides an outlet for any project that wants to do a larger bulk, more mass above their book limit. they want to. it just requires additional approval, typically from the planning commission through one of multiple processes, whether it's a conditional use authorization, a downtown authorization, whatever that may be. so this isn't a prohibition for doing maybe multiple towers that exceed your plan dimension . it just means that the base requirement is going to be that one dimension. and you can't fit, you can't do multiple towers in that. so i'm going to go back to this quickly, this diagram to show just kind of the logical fallacy of consider it the other way. if the intent is kind of the left, like the max dimension above that height for a building, if you can essentially do what's in the middle of a right, you're not effectively reducing the mass above that bulk limit. i mean,

now there may be a process where, as we've seen, there, examples that have gone to the planning commission and was determined that's appropriate. but that's a separate process available for any questions you may have. thank you. i don't see any questions at this time. so we're going to move to public comment. first, we'll take public comment from people in the room. so if you're here for public comment, please come forward. you can line up on the side. mr. patterson you can. you're the first person. so. one minute. thank you very much. good evening. president and commissioners ryan patterson, attorney for. yes, in my backyard law. very briefly, our organizations submitted a public records request. we filed documents that we obtained with the board along with three briefs there are three facts that emerge from these documents. first, this is a new policy that did not exist before . that's why this new interpretation was issued.

second, no one could look at the code and conclude that it means objectively what this interpretation says. it means. and third, and that includes planning. by the way, if you look at those emails. and third, no environmental review was completed under sequa. the legal conclusions that flow from this are that there was a mistake in the interpretation, as the appellants have detailed. second, this is a reduction of allowable residential development capacity in violation of the housing crisis act. third, it would lead to violations of the hra because it's not an objective standard. and fourth was violated. thank you. thank you. thank you. next speaker, please, sir, if you could fill out a speaker card when you're done. thank you. thank you, president swig. commissioners thank you for the privilege of being able to speak with you this evening. i'm here to let you know my name is david

miller. i'm a native san franciscan, and i would encourage you to support and agree with what your zoning administrator has said regarding the interpretation. i think the graphs that he used were quite telling in showing the 37, frankly and respectfully, the absurdity of the appellants position here, that if that position were to be permitted to carry the day, it would be an open season for development of this sort. that would be completely out of character with what exists in san francisco. thank you. i hope that the committee here will not make a decisions on this project going forward that are equivalent to putting advertising on the golden gate bridge, an idea that was shot down 16 years ago. thank you. next speaker, please

. hello, my name is sophia papaya. you also a native san franciscan. i want to thank the planning commission president swig and the commissioners for taking this on. as a native san franciscan, i've lived since 1964, in the sunset, i worked at the san francisco zoo where this plan development is being considered. as far as zoning, i think it's important for a city to have a diversity of zoning and not become homogenous in tall towers all over the city. the city is made up of neighborhoods and the neighborhood concept should be part of zoning with limits for how tall structures are considered. diversity in the city on many levels, and that native san francisco should be heard on this. and especially people that have lived decades out in the sunset. please consider zoning in the proper way that it should be zoned in

community and neighborhoods. thank you. thank you. is there any. i don't any more public comment inside the room for somebody. so we're going to move to zoom. so, renee is the first speaker. please go ahead, renee . please unmute yourself. thank you. okay. sorry about that. um, hang on. i don't know. i can't unmute it. we can hear you. okay. good thing i didn't say the worst word. right. that's good. okay, so hi, i'm renee lazear and i'm representing myself a long term residents. sf our neighborhood, san francisco and the very concerned and outraged neighbors near this potential project. i don't want to belabor the points that everyone else has made in their emails and letters they've submitted to the board and public comments. but i would like to express that we support the position of the zoning administrator that would like to

encourage the board of appeals to uphold the zoning administration's determination and deny this appeal. this project is closely and appropriate and multiple reasons , not just the bulk size and height as well as the adverse impacts on the community and would set a very bad precedence. thank you for your time and have a nice evening. thank you. we will now hear from the caller whose phone number ends in 5936. please go ahead. you need to press. yes, you unmuted yourself . please go ahead. you have one minute. i eileen bergin was speak following up and speaks written comments speak as strongly opposing the appeal in addition to speaks written comments is the following speakers search the internet. hi any city anywhere where a skyscraper was located directly across from a zoo. only the 2700 site came up. thank you. thank you. the next caller is call and

user number one. please go ahead . you need to press star six to unmute yourself. i don't see a number. it's just you're identified as. go ahead. yes, you did it. i'm evan rose and i live in the parkside. what's the definition of abuse of discretion? according to the judicial council of california, abuse of discretion is defined as a ruling that is arbitrary or absurd. the judicial council also notes on its website that this does not happen very often , and the appellant has clearly not met its burden of establishing that the zoning administrator's interpretation was arbitrary or absurd. so there is no abuse of discretion, as has been alleged. the appellants law firm has been the lengthy brief that focuses on the supposed long reach of state law into this little neighborhood and into this hearing room. but this is not the proper forum to interpret state law after wading through this brief. it's clear the zoning administrator did not air as the applicant or as the

appellant has alleged, nor did the zoning administrator abused its discretion. therefore, i would respectfully request that you uphold the zoning administrator's determination and deny the appeal. thank you. thank you. we will now hear from collin user number two, please go ahead. you need somehow we lost that person, so. oh, no, you're still there. go ahead. you can speak now. you've unmuted yourself. we have a phone caller and user number two. number two. hello i think you have a computer going at the same time as your phone. you need to mute one of them. the computer obviously. yes. okay can you hear me? yes, i can. please go ahead. you have one minute. you have sunset district is not hong kong and the sunset district is not paris. it's more . families live in the sunset district than anywhere else in san francisco. so why do we want

to build a high rise apartments in the sunset? so i say no to hong kong, no to paris and no to 2750 stories and yes to san francisco's sunset families and yes to uphold the zoning administrator determination and deny the height and bulk appeal . thank you. thank you. we will now hear from jane nottoli. please go ahead. jane. natalie, go ahead. you have one minute. my name is jane. natalie. i am the san francisco organizing director of community action. i'm calling in support of the appeal planning and just make up interpretations as it goes along, which it has been. want to do. this is a reasonable interpretation, as has been laid out. we need to follow that just because people don't like it and are bringing up things that aren't germane to that interpretation doesn't mean it's not legal. that's the burden we have to meet. please move

forward and allow this project continued. thank you. okay. thank thank you. we will now hear from jean barish. please go ahead and good evening. i'm sorry, i just got lost. please deny this appeal and uphold the zoning administrator's termination that this project exceeds the maximum permitted plan dimensions of several sections of san francisco planning code. the zoning administrator's brief sets forth the reasons why this appeal must be denied. it was no abuse of discretion, and the determination was clearly based on a sound interpretation of all relevant laws and policies. the height and bulk of this monstrous building are nonconforming. the essence of bulk rules considers the quote amount of wall surface that is visible and, quote, the degree to which the structure extends above its surroundings. quote there's no question that this

skyscraper has too much visible wall surface and that it extends much too far above its surroundings. please deny this appeal and uphold the determination of the zoning administrator. thank you. thank you. we will now hear from rafa. sonnenfeld, please go ahead. yeah good evening. i just wanted to call in to express my support for the appeal. listening to the zoning administrator this evening wasn't clear that there that their interpretation was based on any clear history of applicability in in the city zoning code. you know, i think the appellants argument was compelling and the strange argument that the conditional use permit is allowed. is, i think, irrelevant because is

zoning still conditionally, permits still allows zoning anyway. and if you have a change to zoning, then you need a, you know, a legislative action which a conditional use permit is not. so support the appeal. thank you . thank, thank you. we will now hear from sonia kraus. please go ahead. you need to. hi. hello. hi sorry about that. yeah. i'm so i'm executive director of. yes. in my backyard. obviously we support the appeal and we did this appeal because state law is moving in a direction of cities, have to publish and make known and make obvious and make objective whatever their standards are ahead of time. and the zoning administrator really gave it away in his present. he actually said, yeah, sometimes we allow it, sometimes we don't. it depends on the project. sometimes it's good. the whole

point of the state laws changes in the past four years is that cities can't do that anymore. san francisco is a city in california and so it's a city that can't do that anymore. and the reason that cities aren't allowed to have bespoke project by project, maybe this one's good. maybe we like this developer. you know, this developer tickles our fancy is it's bad for housing production. it promotes. corruption. it makes it makes the housing production process slow. and i'm sure. okay. thank you. we will now hear from galina. please go ahead. galina, you need to unmute yourself. we can't hear you. you're still muted. we can come back to you. oh, here you go. okay. you have one minute, please. good evening. i'm living

with my family in sunset area and. and i'm voting against this project. it's awful to build buildings like this one. it's not the area for high garage building. and could you please. don't do. don't give permission to do it. and thank you. bye bye. okay thank you. we will now hear from robert brookman. please go ahead. uh uh, good evening, commissioners. my name is robert shukman. i think it's pretty clear from zoning administrator teague's comments that this interpretation interpretation was brought over. one particular case and that the interpretation here is for role that isn't explicitly stated in the code. it seems pretty clear

that this interpretation is the city's attempt to stop a particular housing project and his assertion that a more conservative and restrictive provision should apply when there are conflicting planning code rules is probably a violation of the housing accountability act. um, where the city should be promoting housing rather than looking for reasons to deny it. if we really need this rule, why was there no sequa approved? will you know any planning code amendment requires a sequel approval so the city can't pick and choose which rules it wants to apply. thank you. okay. thank you. thank you. we will now hear from john mateo costanza. please go ahead. hello, this is mateo. i'm a resident of san francisco, so i have a question. i kind of wonder if a bulk limit is fixed,

like 100ft in one dimension and 25, how does it make sense to have that applied to a lot of any size? it would be an advantage for parcel that is smaller and a much bigger parcel would then be kind of in a disadvantage. and also, i wonder if this boils down to what is a building, if you place two buildings with separate foundations on the same lot, would a tower limit also apply? i think yeah, i would love to learn more about this. thank you. okay. thank you. is there any further public comment? raise your hand if you're in the in the queue and you want to provide public comment. okay. mike chen, please go ahead. uh, good evening, commissioners. my name is mike chen. i'm a san francisco resident. i'm speaking in support of the appeal. would like the building standards to be clear and objective. and as a

side note, i am a resident of one of the one of the buildings that the appellant has mentioned . it is a two towers that's over a common garage. so personally i find this very entertaining. thank you. thank you. is there any further public comment? please raise your hand. i don't see any other hands raised. give it another moment. okay. i see a hand one moment. if you could raise your hand. now. if you plan on giving public comment, that would be helpful. so we don't have to ask multiple times . okay, let me find that person . okay jessica perla, please go ahead. you need to unmute yourself. hi my name is jessica. paula i support the appeal because being from florida, i support giant towels by the

ocean and think this is a really good idea, especially once i saw those balconies. so let's build this building. okay. thank you. any further public comment, please raise your hand. you need to raise your hand. okay. it looks like we are finished with public comments, so we will move on to rebuttal. and we will hear from the appellant. you have three minutes. thank you. this wsa brief recognizes that this interpretation in his brief was issued quickly and in a format that didn't allow for detailed context or analysis. that's less than what you would see with a standard letter of determination request, and it's not appropriate for a decision like this with far reaching impacts. it's going to restrict development citywide. we've shown several reasons why this interpretation rises to level of error or abuse of discretion. it reads a new limit into the planning code that is simply not there. now we can't read a specific limit into a code based

on general policy goals. that's supposed to be done through a zoning process. adopting actual objective standards is contradicted by recently adopted language of the general plan, which i mentioned earlier that contemplates multiple towers on a single property. it could be accomplished through a building or buildings. so potentially on an individual building and that's not addressed. it's inconsistent with sections of the planning code that expressly anticipate multiple towers in a single building, each subject to the same maximum plan dimensions that apply under 270. and there's plenty of precedent showing that the city has consistent applied the bulk code differently over the past few decades. that's not a one off event. we showed ten potential precedent projects, many of which are prominent in the city . this is not going to allow development out of character with the city. that's what those precedent projects established. and there's been no clear precedent to the contrary of applying this bulk code a different way over the past 30 years. it was an unintended consequences and unreasonably

restrict development citywide, which is not the intent of the bulk code. as was pointed out, if you have a site that is a city block wide, this would restrict it to one vertical element under those maximum plan dimensions, it would be a gross under use of that site or as the zoning administrator mentioned, it would allow side by side individual buildings, each with towers above them, built right next against each other, which would still allow a wall of development, which is against the intent of the code and perhaps most importantly, will violate state law, including the housing crisis act of 2019 and sequa. so for all of these reasons, we ask that the board overrule this interpretation. the only impact of doing so is that if planning wants to create a new objective bulk limit, it would need to be done through a zoning amendment that's properly vetted and has opportunity for public input. thank you. i'm available for any questions. thank you. we have a few questions from commissioner trevena and commissioner eppler . thank you. so your appealing

the zoning administrator is determination. what is the impact on you or your client if the zoning, the zoning interpretation goes through so no. 2700 sloat the project that's been bouncing around without being directly the project. at issue here is a pipeline housing project that has had applications on file since 2021. that project is utilizing state density bonus, which requires first coming up with a code compliant base project which meets all objective zoning standards. looking at the residential density of that, this house sponsor has submitted a few different means of calculating base density. one of those involves a single building with multiple towers above it. if that's not permitted, that would reduce residential density on that particular design. and while we understand there's a great deal of interest in 2700 specifically, again, the item before you is the interpretation , which has the potential to impact residential development

or development citywide. you know, as we mentioned, we've got ten projects that would not have been designed the same way or would have less density under this bulk interpretation, right? well, yeah, the argument that it affects the city entirely cuts both ways in terms of the terms of the impact, but specifically you're not are you are you saying that there would not be a 2700 slot development if this zoning if this determines is upheld? that's not what i'm saying. it's a more complicated issue. it's a project that's in the pipeline. you know, we don't have an approved design for that project at this point. we have submitted alternative based density studies. there's more than one way to do that calculation. one of the base density studies we submitted does have one building with multiple towers. and if it's not permitted at multiple towers, that would reduce that density calculation. but again, we're early in a pipeline process. i can't give specific numbers of what the impact would be for that project. i was hoping for a

more clear answer as to what the impact is, but let me try it one other way. can you achieve what you're seeking? if you had separate buildings as opposed to a building with separate towers ? it's not an easy answer. there are a lot of moving pieces in open questions with the planning department and we don't have a completed density study approved by the sponsor and the planning department. at this point, i can't give a definitive answer on that. i can tell you at least one of the base density methodologies this would reduce residential density on that site . thank you. commissioner eppler , you mentioned earlier the issue about not being able to have multiple towers at this if this interpretation were to stand, am i correct? we have zoning areas that specifically

describe multiple towers, right ? we have zoning districts that describe bulk plan dimensions applying to towers. we have districts that include tower separation standards, specifically in areas where there's more dense development on smaller lots per site where you would anticipate more taller towers next to one another and so when we talk about tower separation, that implies multiple towers on on a lot. you mentioned earlier that if we had adequate separation on outside of this district and a district where the zoning administrator's interpretation would apply, if we had adequate separation, then we wouldn't have the issue that the bulk limitations are trying to get around. is that is that right? i mean, if we could have adequate separation of those towers on on a single correct there i believe there are many

sites in the city that are large enough to accommodate that. how if it's not set out for a zoning district, how do we then define what is adequate separation? well if the city desires to have a standard for adequate separation, then they would adopt a tower separation standards specific to that district like you see in the c three districts or the eastern neighborhoods districts. but there are a lot of existing controls that go to the same issue. requirements for fire separation, other setbacks, massing standards, dwelling and exposure and residential development, things that push development to have separation between vertical elements are all of the guidelines for tower separate outside of a district that has separation guidelines? are they all objective or are there subjective standards attached to those as well? could could you repeat as well? so if we're in a district that does not call for or that does not have its own tower separation standards written into the code

, are those other elements that we can piecemeal together into tower separation requirements? are there components of that that are subjective as well as subjective? the concept of adequate separation is subjective, but there are standards in the planning code, like the maximum plan dimensions that we apply that limit dimensions of what those vertical elements can be in our objective. and so if there are subjective standards, if a project is then brought under a state law that requires only the use of objective standards, would we then lose the ability to have tower separation except for those limited. rules that you mentioned, like fire safety ? yes, subjective standards should not apply to new housing development, whether it's pursued under state law or local entitlement processes under the housing accountability act. so there aren't then there wouldn't be any subjective standards for tower separation, for residential development in those districts. no subjective standards, no. but again, there

are other objective standards in the code that go to the same issue. and the planning department could certainly adopt objective standards if that's the desire to do it. but but if they run into the needing the need to offset perhaps the loss of residential development capacity, if that's in fact the case under state law. right yes. okay. just thank you. thank you. okay. thank you. president swig. that's a question for you. i'm wrestling with my own absurdity , but i got to go there. so we what this challenge, the appeal seems like i have an 18 month old little boy who i love, a grandchild and. and there are standards about what you can and what you can do. and my experience with this 18 month old is that he's constantly pushing the envelope to see how

far he can push the standard. you know, in from behavioral terms. and although we have a standard, whatever that standard might be with regard to behavior, he's going to push the envelope to see how far he can take it, even though his parents seems to have set a standard for behavior. are you pushing the envelope to see how far is this action of pushing of the envelope, to see how far you can go with with this project? i think the goal of, you know, state law, current housing laws is to maximize residential development, to address the current housing crisis that we're in. and that does call for pushing the envelope for what's allowable under local and state law. but i would also say when toddlers or others push the envelope that can lead to good growth. so it's a valuable exercise and is the opinion i'm going to flip the paradigm is

the opinion which is rendered by the zoning administrator and attempt to set a standard for which negotiation can extend. i'm going to ask a question similar to that of the zoning administrator, but is the zoning administrator like my son says to his 18 month old and here here's the standard, right? and this is where we're going to stop it. now, that's not going to stop my 18 month old from continuing to try to adjust that. and at one point through creation and concentration on this standard, they're going to find an equilibrium which is right. but with with this, are you not acting like the 18 month old who after the parent has established the standard, you're trying to blow it out of the water to see how far you can get? and regardless of whether it's appropriate or inappropriate, regardless of whether damages the skyline of

san francisco or not, regardless of whether it ruins the neighborhood or not, just simply to make your your point. so, again, echoing the comments earlier in the evening, this is not about a particular project. this is about the zoning administrative interpretation that has the potential to impact development citywide. i don't believe that to be the case or not. i want to i want to clarify because i may have overstepped. i didn't mean when i say to ruin a neighborhood. i was talking about the sunset district. let's say any neighborhood, any situation, anything that would that that that would have a negative effect on any neighborhood. the city macro the city micro sorry, in appealing this interpretation, we don't believe we're pushing an envelope. we believe preserving the zoning and bulk controls that are currently in place. the interpretation itself creates a new bulk control that hasn't

existed before it was issued, and that's shown by the precedent projects that we provided. those projects went forward as design with reasonable massing and scale. and there's some of the more prominent projects in the city because the planning department allowed max plan dimensions under the existing plan code to apply to individual towers within each of them. okay. thank you for walking right into my trap because i'm going to ask the following question. okay. what's the history of those buildings that that you cited? how did they do you know specifically how they got there? do you know that they from the beginning, i don't know. but i want to know if you've done your homework. and i'm going to ask the zoning administrator the same question, because what's fair is fair. yes. you cited a bunch of buildings that got to a certain point and they did. and they're there. no, no, no denying it. okay but did they did they start there? where did they start? where did they end? what was the level? what was the

what was the implementation of the of the bulk requirement? and you can put your your stuff down because i don't want you to hurt your arm. we're not done yet. so when would you know when the bulk requirements were implemented by the planning department? when the then when the project sponsor came back and said, yeah, i know you have your bulk requirements, but let's talk. and that's negotiation and that's planning. and so and that's when these projects good, bad or indifferent, i'm not going to place a value judgment on any of the buildings decided. but do you know where they where they started and how they got to be, where they were and what were the special, the special situations that got them to where they are? because i'm not doubting that they they they go beyond the precedent which the zoning administrator is relying upon. but did you do your

homework on that? and can you tell me in elaborate, did they suddenly just present the these tall buildings with massive bulk and then they got built without okay, go ahead and do it? or was there a process? yeah. so we did submit a brief and the brief was very large. it had a number of exhibits to it. and the bulk of those exhibits was the plan submittal materials for those projects that we cited in it that showed the plan documents themselves and how the max plan dimensions were applied. the planning commission approval motions that discussed how bulk was applied to both sites. i've looked at ppa initial project, preliminary application letters for a number of projects that site bulk dimensions is applying to towers and a few of the projects that were in the list that were provided. i worked on as a land use attorney from start to finish on those projects. for those i can tell you that the issue of applying maximum plan dimensions, individual to each tower was not raised with me. it was assumed that that was something that we

could do and so for those i have direct history. for the others, i wasn't in the room for every moment of the discussion, but the plan documents and the approval materials show me pretty clearly how the bulk code was applied to them. and for those and i'm not doubting your those those buildings, their validity, whether they should be good, bad or indifferent. that's it's why do it so they're already there but i but i, i look at other buildings i look at some landmark buildings like the transamerica tower where certainly the bulk issue was looked at. i think i don't know, i wasn't there, but it sure seems like it by the shape of that tower. i look at the embarcadero towers and i know that they aren't straight up, that they taper and are very elegant at the top. and i look at a project that i didn't like at all. it got built. tough luck, rick, which which is on the corner of howard and embarking arrow and but even

even that building i had other reasons why i thought it shouldn't have been approved but that building made an effort to mitigate its bulk. in retrospect , i think it's a very pretty building. i still not sure it should be there, but that's okay. it's been built, you know, don't cry over spilled milk. but even on that building, there's there was a real effort to architect the building so that the bulk that really does exist doesn't does not show. and i, i think because i, i was involved in the approval of that project again, i tried to get it denied that that was a long, long process. and the attorney miss murphy, who was extraordinary in her presentation. showed the steps by which the there was a

push me pull you push me, pull you and so where is the and what i if i made the statement that i think that the zoning administrators point of view is correct and that the process of really determining what the bulk is ultimately going to be should be determined by a baseline, which is the planning, zoning, administrator's opinion and then be the final result, be a result of due to a long negotiation of trying to find what's really right. would that how would you respond to that? that i would say that requiring every project to go through a discretionary approval process for what's currently allowed under the bulk code as it's written would just unreasonably constrain and prolong housing development. and i think the factors that go to how a tower is shaped, we say i've said tower a few times, but the bulk code that we look under 270 is really just looking at

base height and then vertical element and whether something rises to a tower height wise is defined in different sections of the code. depending on the district that you're located in. but how those things are specifically masked and what the with the specific controls are under the code vary by district , right? you're going to see that sort of tapered development in the downtown c-3 district because they have very specific reduction standards for lower mid and high rise tower areas. right. there was a public comment that said, i'm from miami and we should build hey, looks great in miami. and they built them right on the water. i flown to miami airport and i, i see that all the time. i go, hmm, that's interesting. i don't live in miami for, i think a reason, but. but you know what's what what is appropriate, what's not what what the generic is again, the paying attention to bulk again should it not be a

starting point based on the zoning administrator's opinion. so we again, the i'm going back to the personality, the 18 month old doesn't keep on poking and finally get this absurd, absurd, potentially absurd situation occurring because there was no standard of behavior in the beginning. i would say that there is a standard existing in the code that allows multiple towers right now and to set a new standard specifically to divide the potential maximum residential density that's allowed under state law would be inappropriate and abusive discretion. and one final question, because this this bugs the heck out of me. we're in a housing emergency. oh, my god. yes, we are. by the way, there's lots of there's lots of inventory available to be to house people. it's just too expensive is the bottom line. we could house everybody in the city if the prices of those things weren't so expensive and that's up to the developer who

built them at $1,000 a square foot that forced their profitability to be to force rents at an absurd high level. but that's just my editorial opinion. but in reality, the metric is there's plenty of housing. it's just too bloody expensive and was and that's what we're we're, you know, we're stuck with where it was. my question. but but should we in a this is my question we're having should the fear of we're in the midst of a housing emergency in 2023, in impact 2043, 2053, 2063 in the city and potentially make severe adjustments to the what has been the elegance of san francisco. just because we're in a perceived because there is plenty of housing available perceived housing emergency should we should we adjust the core values and the careful

planning of this city? because we're in a short term housing emergency that really isn't an emergency just because housing is too expensive. this is what also i'd like to know your your ultimate clients view on this or your view on that, for that matter. well i should. why should we why should we in the short term modify the integrity of the city's look and planning situation and its bulk standard? i'm staying on topic. just because we're in a short term housing community emergency that we maybe not even be in for the right reasons. i don't think that's what we're doing here. what we're doing here is maintaining the zoning bulk code as it's been applied for the last few decades and not adjusting it out of concerns of how it may apply to a single project or development. moving forward. given state law modifies. right. we're applying the zoning code as it has been

applied for decades in the past. you know, the question of availability of housing is, you know, above my ability, i think, to address at the moment. i will say i think there have been studies showing that under production of housing over the past few decades has led to the issue that we're in today. certainly the city is pursuing policies directly to produce more housing. while i don't believe that slope project is directly at issue right here today, approval or denial of that site, there has been significant production of housing in that area of the city. okay. just to make you feel good, i'm going to be just as aggressive with mr. teague. thank you very much. thank you. no further questions. we will now hear from the zoning administrator. okay thank you again, president seward. commissioners corey teague. we'll try to go quickly. first, just want to reemphasize the interpretation is not a

prohibition prohibition on expanded bocc that there's always an option to get that authorization to go bigger. also, the interpretation does not say that you cannot have multiple towers. it just says if you're going to have multiple towers, they have to collectively fit within the maximum permitted dimensions. so there's not a blanket prohibition on on more than one tower. another thing that's important is that the code is split. and again, there's a lack of clarity, which is why the interpretation is needed. but there are many places in the code for parts of the city, especially, that are very purposely zoned for very tall buildings, whether it's special use districts or special bulk districts where it is envisioned, there will be multiple towers. and in those situations, they were very clear and mostly objective criteria for what those towers need to look like. right. what the separation can be, how they have to reduce, how to have to relate to the surroundings. et cetera. so this interprets is essentially saying that for the areas that have very specific

controls for how you regulate and how you actually design for multiple towers, that's clearly something that the code is allowing and permitting within these provisions. and there are some projects like the pine street project that was raised here that was two towers. that project went to the planning commission and got a bulk exception like they went through the process that you do when you are going to exceed the bulk requirement. so i think every project that's on their example list is either in one of these special bulk districts like transbay rincon hill, et cetera, or as a project that went to the planning commission and got a bulk exception. there's one project on their list that is a minor deviation. i think it was literally just an oversight. it's not even really a second tower. it's just a building element. but i think that's the context that's important to understand. there the other thing is i've mentioned this before is the city has taken lots of steps on policy where ever we land on the outcome of this determined the board of supervisors can adopt legislation to clarify the

controls how they see fit. that's always going to be an option that they have. and then specific only. this interpretation is not based on any specific policy. i think it is important to note when this was first considered and determined internally back in 2019, the very tall, large project that we're thinking about now at slo didn't exist. it was a much smaller, more typical homeless project at the time when the determination was originally made. lastly, or maybe not lastly, but interpretations are not a project under sequa, so they don't require sequel review and they're not new regulations under state law. that would create really weird precedent for how i could make interpretations. and then finally, there's been a lot of talk about that email chain where we talked about it. i have the whole thing we can in questions, i can do the whole thing. you can see the context of that. if you want. okay put that all in just under three minutes. thank you. we have questions from all of the

commissioners and we'll start with commissioner lundberg. thank you, mr. teague. i was wondering if you could pull up that slide you showed us earlier with the one versus two versus four tower differentiation in. thank you. just i'm just using this as a visual aid because i think it's helpful just to kind of clarify my understanding of your interpretation. the bulk limits are and assuming all of these towers go above that, that cutoff for which bulk controls are required. right. assuming that's the case, what practical difference does it make between

two towers with a single level on the bottom? first is two individual towers that are next to each other on the same, same exact lot. what what's the what's the differentiation in there from your perspective, from the planning perspective? so i mean, the differentiation for us from a more general planning policy issue is that if you look at a lot of planning guidelines and objectives in our general plans and in our area plans, generally speaking, we don't want massive individual buildings right? we recognize there are going to be big buildings, but generally there's is once you get buildings of a certain size, there begins to be a detriment to not having those split up into more buildings. and so that's that's part of it from there, it's true that you can have the same property, split it up into separate buildings and that's no different than the property was split as well. and you could end

up with an outcome that's not very far off from something that you couldn't do if it was all one building. i think that's just kind of a nature of the regulatory beast and obviously, if the if the board of supervisors wanted to expand that regulation to go for the whole property and not a building, that was something that they would be able to do. but it is true that you could do a multi building proposal that we get you near to do what you could not do under a single building proposal. so and i guess just a further clarify the maximum dimensions in if they were not connected, if those two buildings were not connected, that would apply to each building. under this interpretation, each individual building, correct? yeah. that was the key. one of the key components of the interpretation is that it's clear that the dimension is required to a building, to an individual building, and that the dimension and the maximum plan dimensions would capture all portions of that building above that height, which would include multiple towers if they existed. thank

you. and then kind of harkening back to something mr. draper said, i if the project sponsor and i don't know where this is in the process or anything and i don't think it's particularly relevant, but if they were theoretically to submit plans with four separate towers as opposed to, i don't know how many towers this proposed project has, again, it doesn't really matter. i'm just using four as an example. if there's four towers all connected at the bottom currently for individual towers, would they would that fall or would that fit under your current interpretation? likely not, because you probably would not be able to fit four towers within the limited plan dimension that applies to that property. okay. that is helpful . thank you. i think that's all i've got. i'll pass to commissioner trevino. thank you. just to follow up, whether it's 4 or 3, it's the same amount

that the i think while we're focusing on the bulk limits high up, it's really at the bottom of whether you can call a building, a building or or multiple buildings. if they're separation at the bottom, then you have multiple buildings. and you can i can you achieve the same with multiple buildings that you can with one building in terms of bulk? and that's what the point i was making is that you can achieve more overall effective bulk with multiple buildings than you could with one building. if the property is large enough, correct. if it's a smaller property, it's not going to make that a difference. so the appellant's brief states that a zoning administrator is determined must be consistent with the expressed standards, purpose and intent of the planning code and pursuant to its objectives, necessary to administer them. do you agree with that sentiment statement,

legal proposition? yes. okay good. good. so, um, so just for the record, can you describe succinctly, if you can, the standards and purposes and intent that you are following here? sure the those are all outlined basically in the plain text of the code. and then obviously, whatever supported by the any other relevant documentation like the general plan in this case, the interpretation is based partly on the plain reading of the code , which again very clearly says the bulk control is applied to an individual building and that the maximum dimension applies to that building in totality at that level. so it doesn't matter if it's one tower or 2 or 3 towers, they all have to fit within that maximum plan dimension. so just from a plain reading of the code, i think that's a very understanding perspective. additionally if you look at the code structure, as i mentioned, there's if you're going to have bulk limits like

this, but you could basically do multiple towers in a manner that has no requirements for box separate tower separation or how those should be designed or laid out. you could effectively supersede the bulk controls. if we looked at it from the perspective of the appellants, i think from a logical perspective that doesn't make sense, especially because, again, it's not a prohibition. i think if you look at the overall structure of the code and how it deals with high in bulk, it's clear that there are baseline allowances and there are code provisions for special districts that are intended and understood to have multiple towers and need tower separation and need guidance on how to deal with multiple towers. and then if you want to do more bulk than what is permitted, there's going to be a process for you through the planning commission to do more because you do need to have that review. what is the appropriate design for these multiple towers? what is too big? how much separation do you need? because if you're not in one of these other districts, there is no guidance on what the

appropriate separation or setbacks or anything else would be. so i think when you look at all of that put together with the fact that this was a question being raised, there was no prior interpretation there was no real clarity. and the record going back, that's a situation in to me that that calls for an interpretation to provide that clarity. thank you . um, i think you touched on this, but i want to want to be be a little bit more clear and make sure that your answer kind of stands apart from the rest of your, your hasty presentation. i know three minutes is not a lot of time. um, so out of the examples that we've been given tonight of multi tower projects , you know, is are there any of those examples where they are not in a special bulk district that allows multiple towers or where they did not get a bulk exemption from the planning department? i believe the only example that either wasn't in a

special bulk or height or sued like a place where the code calls out criteria for multiple towers or didn't otherwise get a bulk exception through the planning commission was, i think, one the one project on venice, which is a very unique buddhist temple project. i think it wasn't really designed to be multiple towers. it was a very unique design. i think that was more of a minor oversight. it was only slightly higher than the bulk height limit. i think that is the only one. i think each of the other ones either were in a district that had very specific criteria for multiple towers or got planning commission approval and so would your interpretation have changed either the process or the outcome in any of those projects to my knowledge, it would not have. i think the only one is the one where there's the slight deviation and that's the only one where it could have changed

that a little bit. but that but not the other ones that had like legitimately multiple towers. and was that slight deviation like understood court and said, oh, we'll just let it happen anyway? or did it slip through? not to my knowledge. i think that was something that was not identified until until this was raised. so. so your interpretation probably wouldn't have acted that either because it slipped through at that time? absolutely yeah. great. thank you for that. i'm struggling a little bit with this idea that your interpretation. has a housing accountability act component to it, or even a sequa component to it. and it's because i think there have been times where my learned colleagues up here on on this dais have looked at plain language and come up with different interpretations. certainly you've been asked to provide and interpretation. you mentioned just briefly how your ability to provide interpretations would be impacted if we went to the

logical conclusion with either the argument or the housing accountability act argument. can you give a little bit more detail about what you meant by that? sure for example, if there are lots of situations where there's not 100% clarity on a situation right from the code, or there may be a situation where there's a project proposal, that is a scenario that's a little unusual and just isn't clearly covered by the parameters of the code. and someone may request a letter of determination to say, how do you interpret this code section or provision relative to this project or proposal or to any similar project? and based on that information, based on the idea that an interpretation is a regulation that could limit development. if that applies, then theoretically i could never, even if all of the facts and evidence and documentation clearly suggested that the interpretation should fall on the side of being more restrictive. i could never technically make that interpretation and to me, that's i think that goes to the point

of interpretation. interpreting existing code is not by definition is interpreted existing regulation. it's not a process of creating new regulations. i would point out that if you look at section 307 and the duties and the authority of the zoning administrator, it does call out that the zoning administrator also has the ability to adopt separate regulations, ones that are deemed necessary to implement the code as adopted. i think that is a different ball of wax for that conversation because that is specifically adopting separate regulation for the purposes of implementing the code as adopted but pure interpretation of the code are simply clarifying what the existing regulations are. and do you think that that that kind of perverse outcome would apply solely to you, or would it apply to any person who is charged with interpreting the existing language of the code? i mean, to be fair, i've not advanced that issue with our city attorney's

office or anyone else beyond the zoning administrator. so i don't want to get too far out over my feet on that one. i think it's a logical assumption to assume that concept would apply down the line. okay thank you. well, thank you. as always, for your diligence. and in and thoughtfulness and trying to interpret the these directions, these codes, hopefully for the betterment of our city. i appreciate that. so. what i have heard from you tonight and agree or disagree is that. is your interpretation, is sets a bar and that my interpretation of the code is this. and that's

where we're going. that's where the bar is set with regard to both limits. and then what i heard was there's a bunch of deviations from that that came as a result of negotiation application of the address, application of the physical location, the all sorts of variables. and so really the bulk limit interpretation becomes for me, the starting point and not necessarily it might be the ending point, but it it is really could be a starting point from which negotiations continue and those negotiations could continue. and the board of supervisors, those negotiations could interpret can continue in your office. i should have started there. those negotiations can continue in front of the planning commission

. and finally, those negotiations have appealed, could end up right in front of us. true is it a starting point ? i'm not sure if that's the best metaphor, really. i think what might be a helpful analogy, there is if you look at something like a mid rise project in the eastern neighborhoods as to get a large project authorization from the planning commission that project is going to be subject to rear yard requirements, right? maybe 25. that's what the code requires. that's the objective code requirement. but section 321 allows you to request an exception from the planning commission to do less of a rear yard and to your point, if that is the proposal, then i mean, i don't know if i like the term negotiation, but there's a review process. there may be right. there may be justification for doing less rear yard. but the point is the code requires a higher bar of review and approval for that. if you're not going to meet the

base requirement, the planning commission has to review that and grant it in a public hearing. and that's similar with bulk write bulk. we have the baseline requirement. we have some districts where the bulk provisions are very specifically called out to allow to consider multiple towers and whether even in those districts where you can do multiple towers or in districts where you're there's no provisions provided for that. there's an opportunity to go forward and request, you know, less, more bulk, less requirement. there's an opportunity there the same way there's a there's a path through the planning commission to get more. we're really just talking about what is the baseline standard code requirement. well, that's what i'm saying. so. so you would agree that my view of what your interpretation is sets a baseline requirement that is not necessarily the final answer , but it's a baseline requirement from which it is, is

your interpretation and therefore planning interpretation of what the bulk limits should be and then and then the game begins. maybe. or maybe not. that's true. sure. i mean, yeah, project can propose something different from that. i think the distinction to be completely upfront is that for some projects like a state density bonus project, you have to be co compliant and then anything you're not co compliant on, you have to use waivers or incentives to do that, right? so that's a kind of a slightly different scenario than a situation where you're going to the planning commission to, to ask for additional bulk. but you're correct, this is just a this is an interpretation of what the baseline bulk requirement is or is more of an interpretation of how you measure bulk to determine because each bulk district has a separate height and permitted dimensions, you know, but it's just really making it clear that when you're when you're measuring bulk above that bulk

height limit, that it's a limited dimension. like everything you're doing has to fit within that dimension, whether it's one tower or two towers, whatever that may be. and then that's that's it for the baseline bulk requirement. and, and so. so, so the. so this interpret, so our acceptance of your interpretation isn't, isn't a fixed element meaning that it's in a box, it can't be touched. it's black and white. it's just again a the, the baseline, the start it may be the ending point, but it also can be the starting point. and therefore it shouldn't be interpreted as really carved in stone for forever on any project. am i am i overstating

or am i interpreting it correctly? no. i think that's generally fair. i mean, obviously there's no guarantee you're going to get approval to do more bulk. so like the baseline requirement is important and relevant. so it is kind of blocking in stone how you measure the baseline requirement. but there are options for going beyond that, that projects may have where without your determination or if we find for the appellant, then suddenly the baseline requirement is obliterated and god knows what you know what the bulk is, it becomes subject to anybody's argument and interpretation. so the wild, wild west is, is i mean, that's overstating it. that's maybe a little overstating it. but i think my that's what my graph was trying to and i say mine i brought it here. i didn't create it to give trent green and our office his his do it is making

that point that the intent of the bulk control is to limit what the bulk of the building as it gets taller. if you can do multiple towers that essentially don't really reduce the bulk nearly as much as what's called for, there's kind of a logic issue there. like it's a way to basically render the underlying bulk control, maybe not completely moot, but in that direction. and so going back to my 18 months old, the analogy when his parents set the baseline, obviously the 18 month old is going to push and see how far they can move the baseline and ultimately grandma and grandpa are going to show up and maybe say to the parents, oh, baseline is good, we think it's really good or the appeals made to the grandparents by the 18 month old and the grandparents say, well the baseline is good but we can make an adjustment is that analogy fair with regard to again the adoption of your

interpretation and then the grandparents are played the role of the grandparents are played by another party such as the planning department or the board of supervisors or some other entity. well, i don't know if that's a perfect analogy either. just because in this case, what we have today, we're just talking about what is the baseline? you know, in a future case, whatever the baseline is, if a project wants more, the group, the body determining do you get more is really going to be the planning commission. i think what we're here today and in all fairness i don't i don't begrudge the appellants at all or anyone for advice waiting for their position and trying to maximize the opportunity. i mean, i think we should be able to defend whatever positions we take and so i think that's totally legitimate thing to do. it's just that today we're trying to decide is this interpretation ration or does it make sense? is it based on something real? which i've tried

to lay out in the in the brief and the information today just to provide this clarity going forward, which is what interpretations are intended to do when there's a lack of some lack of clarity in the code. the interpretation is there to provide that clarity both for staff and for the public, for the development community, etcetera. and i think that's what we're trying to achieve as a baseline. okay the i'm going to ask the same question that i asked, but in a different way. as i asked of the appellant, appellant's counsel, she gave examples of a bunch of buildings . and the they obliterate in many cases. i think according to her, maybe you'll deny this, that what would be the baseline precedent that you are that you are opining upon, but they they got built. okay. what did the baseline when those buildings got started where they subject

to a baseline where they subject to the same bulk rules that that you are you've written your letter determination about. i'd have to go back and look at the exact numbers. i think all but 2 or 3 of the projects were in parts of the city that were specifically codified for towers and multiple towers. again, we're thinking like rincon hill , other parts of like transbay or soma, where they they're very specific bulk controls for tower separation. et cetera. and so they were able to be used those . there was one project on pine street that went to planning commission, got a conditional use authorization for multiple things, including a bulk except ocean. and then there was there might have been another one that went to planning commission. i can't remember off the top of my head. and then there was the one project that again was i think, a kind of a quirky one that just slipped through a little bit on

venice. so the starting point in every single case was a baseline , the same baseline that you are opining upon and then depending on the address, the location, the situation, the pleadings of the very skilled lawyer or architect or whatever, the adjusted was made by by some other entity and it ended up the way it did good, bad or indifferent. and i'm not saying bad. right. good bad or indifferent. good in some cases . very well. is that so? the baseline becomes a in your view again, your letter of determination, you advocate the baseline because you've got to start somewhere and be very clear what that is. and then from there you take in to consideration the special natures of everything else. and i think a lot of the projects on their example list were the baselines were different there in that area where the code provides kind of a different baseline for tower separation and other means to address

multiple towers. so they all had a baseline. those are a little bit of a different category. i think the pine street project is probably the best example because that's not like a big downtown town project. it's a large two tower project. that's really the kind of thing we're talking about here. we're saying that i mean, it's hard to know that project. i don't think ever proposed a single tower, so we can't really, you know, go through the process and use it perfectly for an example. but it it was a building that collectively had two towers. it went to planning commission for a bulk exception. and we're saying that's what you would need to do if you want to do multiple towers that do not collectively fall within the permitted bulk limits with regard to the argument that we're in a housing emergency. and so rules be damned, future be damned. what the what the city of san francisco. so how it

behaves in the future, what it looks like in future be damned. we got to solve this housing community emergency because the state says so and by the way, i am so pro housing. you know that from being here over and over again. but this was the argument that was, i think, made tonight. there were emergency situations . so why are we restraining this by implementing this restrictive , you know, bulk bulk restriction? we what is the what is the what is the wisdom around that in in in the context of the planning department making long term planning decisions. 2055 for the city of san francisco versus making some knee jerk reaction and adjusting the bulk limits and secondly, what is the difference between what is the

difference between a residential and a commercial bulk size? building a building is a building in the context of a skyline. the building is a building in the context of shadowing. the building is a building in the context of bulk, regardless of whether it's residential or commercial. so can you enlighten me on why the argument? well, it's emergency housing and we should make these adjustments and not look to the future or throw out the baseline which is being advocated by your your letter of determination. sure. i'll do my best. this answer. the second one first. you're correct. bulk applies to the building kind of regardless of the uses. but then it it's that's not an issue specific to this determination to respond to the larger housing question. i mean i don't have to kind of go through all the actions and steps and statements that have been made by the department and the mayor and the board of supervisors. there's a lot of

pro housing activity that has been going on. is continuing to go on. and that's great. we're all very supportive of more housing with appropriate safeguards for relevant issues. just that's just frankly not the issue around this interpretation , this interpretation. when i'm interpreting the code, the goal is to interpret it to be as close as what we consider to be the intent of the provision. right. it's not to use an interpretation to set new policy is to ensure that the codes being interpreted based on whatever policy was behind that particular code provision. so in this situation, because like you said, this is bulk applies to all kinds of buildings, not just housing, and it applies lots of parts of the city. and you know, is it potentially impactful to this one project? sure but it's a much bigger net that's being cast with this interpretation

than just that one building. so that issue and kind of policy rationale wasn't really a factor in making the interpretation right. so we should we in your view and i don't want to put words in your mouth, we should we should throw out the issue of whether it's housing or not. it's a building. it it it it should be subject to the bulk codes regardless of whether it's a vertical department store complex, housing, commercial hospital doesn't matter. we still got it's still a building as a building as a building. and it should be subject to bulk control regardless of what the situation is. sure i mean, the intent around bulk controls is all about the massing and impacts of the building itself, regardless of the uses within it. okay. so last question. i'm sorry for being so, but i think these are important questions. maybe somebody else doesn't. so i grew up here, you know, born

in the richmond district, and so i know the sunset real well. i know the city pretty well. and i'm thinking to myself and i know based on the public information, no outside research was done as a result of this. i read it on the in the chronicle . so we know it's the truth. you know, that neighbors are like, what the hell are they thinking ? even thinking about putting a skyscraper across the street from the zoo. and so i'm sitting here dreaming and i'm thinking, okay, where is where is, you know, open space that was dedicated. something either commercial or residential that were this could could happen. and i'm thinking on 19 avenue, the old shriners hospital, which i think now is low rise residential, is it not? what is it now? i'm not positive it's low rise residential. right so,

so what if the shriners hospital was still the shriners hospital and somebody came in and says, we need housing and we're going to we're going to build this really, really tall office building that that's, you know, sticks out like a, you know, a gigantic whatever in the middle of the sunset. how is that even ? and, you know, and then i think about the variance hearings that we've had where we constantly talk about, well, you know, if we issue this variance, doesn't meet the five criteria. and that is fitting into the rest of the community, you know, neighborhood appropriately and all that stuff. how is it how is this even and i'm sure this is a question that a lot of the sunset neighbors have, if they were making public comment tonight, how what do you thinking is what i'm looking in their minds? what are you thinking about by building this gigantic potentially this

gigantic column? right in the middle of that, which we already know? and i was thinking, as i'm sitting here listening, what if that gigantic column was put on 19th? and i think it's somewhere near teruel or yellow or something like that. it would be totally and completely out of place. but how what is the thinking that this would even be something that we should be applying your bulk, your your bulk criteria to? well, i won't presume to know the intentions or what the applicants are thinking on that particular project and that away from a slot and put it onto the shriners site. yeah. i mean either one i mean obviously we speaking very generically, it's common for property owners and developers to want to maximize development potential. that's, that's understood. but that, i mean that larger question about what's appropriate and what's not and the competition between

goals and policies that the city may have. we've talked about that before. we may have urban design and preservation goals that may conflict sometimes with housing goals. we have job development goals that conflict with other goals. that's part of what we do to try to figure out what are those balances as you know, just frankly, a lot of that is outside of this interpretation, which is really , again, the interpretation was in some ways kind of near necessitated and called for because of this project. it's kind of put it in front of us as a question that needed to be answered. but it was not issued and considered to be an interpretation for this project. it's an interpretation for this control for where it applies throughout throughout the city. so, so my i think my point is where does this why. you're

doing you're we're discussing the bulk controls and your interpretation of bulk controls stay that that focus but how does this bulk control apply generically to the entirety of san francisco? i you know, i grew up on 29th in california. and if there was land available and somebody decided to build this, a tall that would be really weird, sure. but it would fit into the bulk controls, right? and if i could just for a moment on the overhead, maybe this will help clarify. and i don't know. mr. zargarpur put this up in some version earlier, too. so every light in the city has a height and block district and as you can imagine, the kind of lower height, maybe lower density parts of the city have lower heights where bulk kick in and maybe more restrictive dimensions right? the restrictions are more constricting to the development of the site above a certain height and where you're in areas of the city that are generally

taller, they're zoned for more development, etcetera. the bulk controls are more liberal, but essentially if you look at these, whether you're in bulk district a or e or j, whatever you are, at that height, above that height, the question really is just what is included in the single measurement of length and diagonal, right? what is that measurement? and then that's going to play out for each individual site depending on what bulk, what height and bulk district it's in. so it's going to vary across the city, but the principle will be the same no matter what district you're in. okay thank you. anybody else have any questions? thank you. commissioners. this matter submitted. oh, let's start with john again. go back. we could start with jose, but he didn't

show up tonight. no, he's. he's having a well-deserved vacation . yes. well, thank you, president swig. and you and i have been around long enough to remember when this area was flash hacker pool. you probably even remember flash hacker. i swam in flash hacker. yes. so this is the saltwater. it was really bad and it was always really cold. this this is a critically important issue and topic for everyone in every corner of san francisco. and i really appreciate your leadership and guiding us tonight. but also the members of the public who have have spoken and mr. miller is still here. i was particularly taken by your comments and is particularly helpful for this discussion to occur. but to me, this is not so much an issue of housing as it is about bulk, that the interpretation that the zoning administrator has done at which i intend to uphold is about bulk

. and if we are going to if we are going to solve our housing crisis and it is a crisis if we're going to solve it through bulk housing, through towers, whether it's at 19th and noriega or is it slowed or is any part of san francisco, then that is a discussion that we have to have not just in this room, but through every room in this city hall and elsewhere. so i think it's important for us to focus on what it is we're talking about tonight and tonight. we're talking about bulk. bulk is not housing. housing is housing. there are other ways to address housing on on the on the interpretation itself that both sides agree is the standard of for the zoning administrator that the determination must be consistent with the express standards, purpose and intent of the planning code, the zoning administrator has described how his interpretation fulfills fulfills that on on on the other

side, i would say i'm a bit as i analyze the, the what the interpretation means, it seems to me it still gives a lot of latitude for, for developers throughout throughout the city. and again, we have to have that discussion about about housing in bulk. but as a city not not not as his board and in that regard it does for better or for worse it's still allows a lot there. yes. there's and when i ask the appellant's attorney what does this actually mean to 2700, the answer was either we don't know or it doesn't mean that much, that there are alternatives. there are a lot of different things. they are thinking about doing and this this forecloses perhaps one possibility, but it doesn't foreclose opportunities for

housing. there to whatever to whatever it is they're going to be doing in the future. so i would say we have an interpretation of the of the code by the zoning administrator that meets the standards. and for those reasons and i would uphold it. okay. commissioner lemberg, i largely concur with what commissioner trevino said. i think he expressed the standard very well and i, i would just add that particularly around the discussion of the emails from 2018 that showed mr. teague, i believe prior to him being zoning administrator kind of wavering on the issue a little bit back and forth. what that means to me is that he was using his discretion and that this is an area in which mr. teague, as zoning administrator, has significant discretion in

interpreting the code sections, planning code sections that don't have, you know, that require interpretation, as he's described to us extents this evening and i think in a situation where it's presented where he could have come out on either side, that's what use of discretion is not a abuse of discretion, but use of discretion when there's two possible outcomes. and he chooses one of them based on several different factors. and that is, i think, the bottom line with all of this. and for that reason, i certainly will vote to deny the appeal as well. i want to make one side note, because this has come up several times in this case and many others before us as well, because it seems to have become a pattern regarding adding arguments from particularly permit holders arguing about state law preemption, which

we've discussed several times with our city attorney and otherwise, that we do not have the power to make determinations on state law, preemption as this body you can make those arguments in court all day long , every day. and i believe that is indeed what's happening. however, this board does not have the power to make those to make a determination based on even if we believe that something is preempted by state law, we still don't have the ability to overturn a decision based on that interpretation. that is something that is exclusively designated for the california court system and not for us as the board of appeals. so a note. to counsel tonight and also future in future appeals, because this seems to have become something that comes up almost every week now that we're argued that we have to overturn a decision based on

state law, preemption and with that, i'll pass it to commissioner eppler. thank you. sorry about that wrong button. thank you for that. and thank you to the rest of my commissioners for your efforts to keep very, very clear tonight what it is that we are looking at and what it is that we are talking about. not only does it keep us focused on our task, but it helps explains to all sides of the issue that are not in this room tonight or perhaps watching, you know what it is that we're here and what it is we're doing in the scope of our authority on this matter. with respect to this matter, i'll simply say that i do not think that these administrator either aired or abuses discretion. and so i will be voting to uphold the letter. i'm going to go on the same direction. i think what we've determined tonight and my point of view is that having a having a guideline, a starting point, is very important. there is no thing that was said

tonight by the zoning administrator that says this bulk, this bulk guideline or this bulk order or his opinion is a stopping point. this does not preempt any anything that could be bigger or larger because there are too many other moving parts and there are opportunities to appeal. there are opportunities to negotiate. and i think that he really evidenced marvelous discretion in protecting our city by by looking at a solid and reasonable interpretation, which is what we're talking about here. he's not going to prevent housing. he is going to protect neighborhoods by by in in with

his findings. he is going to is doing a lot of positive things. and it's great to have a guideline on a starting point instead of nothing which for me creates. a chaos. and so i don't think that he was either arbitrary or abusive. in fact, he was right in the pocket. and how how he used his discretion. and i fully thank him and support his position. and i look to my fellow commissioners for somebody to make a motion. happy to move, to deny the appeal and uphold the zoning administrator . march 28th, 2023 interpret version of planning code sections 102 and 270 on the basis that he neither erred nor abused his discretion. okay. thank you. on that motion, commissioner trevino, high

commissioner eppler i president swig. hi. okay. that motion carries 4 to 0 and the appeal is denied. and that includes the hearing. this hearing is complete. thank you very much, everybody, for your attention and your diligence and time. you. [music] digital literacy is something severely lacking in our world today and it takes a

lot to understand that. food water and shelter have basic necessities so long we forget about wifi and connection to the interenet and when you go into communities and realize peep ople are not able to load homework and talk to teachers and out of touch with the world. by providing the network and system we are able to allow them to keep up in the modern age. >> folks still were not served by internet throughout the city and tended to be low income people, people in affordable housing. people of color and limited english and seniors, all those are high concentrations in affordable housing, so we thought given that we had a fiber network that stretched throughout the city reaching deep into neighborhoods that would be a perfect opportunity to address it in san francisco. >> the infrastructure the city and star help us run

are dejtle programs. it played a critical role from the time we opened during covid till now so we were able to collaborate with online services that offer tutoring and school support. it also helped us be able to log the kids on for online school during covid, in addition to like, now that everybody has switched most of their curriculum online we can log kids on to the online homework, check grades in addition to helping parent learn how to use the school system portm >> the office of digital equity our goal fiber to housing is insure we have all three legs of the 3 legged stool. the first leg is high quality internet connection. we liken the high quality internet connection to the

highway. the second leg is high quality devices. this is the car. you want to make sure the specks on the car is up to speed and lastly, it is important to get kind of that driver's education to learn how to navigate the road, to know the signs to watch out for in terms of making sure you are school while you are surfing the internet it is private so that is the digital literacy piece. >> my daily life i need the internet just to do pretty much everything. the internet has taken so much control over people's daily lives including myself that i just need it to get certain jobs done, i need it for my life. i need it. >> the program really seeks to where ever possible provide a service that's equivalent or higher speed and quality as the best commercial service . >> we serve all of san francisco, but we definitely have to be equitable in our

distribution of services. that means everybody gets what they need to be successful. >> actually one of the most gratifying part of my work here at department of technology, it is really bringing city resources to address problems faced with our communities with the highest need. >> i think it is important because i grew up in a low income community without internet access and it is hard. i think it is important for everyone to have internet access no matter their income and maybe one day their kid will have internet access for us and help the school and with their skills.

dev mission's goal is aiming to train young adults, youth so we can be a wealth and disparity in underserved communities like where we are today. my name is leo sosa. i'm the founder and executive director for devmission. we're sitting inside a computer lab where residents come and get support when they give help

about how to set up an e-mail account. how to order prescriptions online. create a résumé. we are also now paying attention to provide tech support. we have collaborated with the san francisco mayor's office and the department of technology to implement a broad band network for the residents here so they can have free internet access. we have partnered with community technology networks to provide computer classes to the seniors and the residents. so this computer lab becomes a hub for the community to learn how to use technology, but that's the parents and the adults. we have been able to identify what we call a stem date. the acronym is science technology engineering and math. kids should be exposed no matter what type of background or ethnicity or income status. that's where we actually create magic. >> something that the kids are really excited about is science

and so the way that we execute that is through making slime. and as fun as it is, it's still a chemical reaction and you start to understand that with the materials that you need to make the slime. >> they love adding their little twists to everything. it's just a place for them to experiment and that's really what we want. >> i see. >> really what the excitement behind that is that you're making something. >> logs, legos, sumo box, art, drawing, computers, mine craft, and really it's just awaking opportunity. >> keeping their attention is like one of the biggest challenges that we do have because, you know, they're kids. they always want to be doing something, be helping with something. so we just let them be themselves. we have our set of rules in place that we have that we want them to follow and live up to. and we also have our set of expectations that we want them

to achieve. this is like my first year officially working with kids. and definitely i've had moments where they're not getting something. they don't really understand it and you're trying to just talk to them in a way that they can make it work teaching them in different ways how they can get the light bulb to go off and i've seen it first-hand and it makes me so happy when it does go off because it's like, wow, i helped them understand this concept. >> i love playing games and i love having fun with my friends playing dodge ball and a lot of things that i like. it's really cool. >> they don't give you a lot of cheese to put on there, do they? you've got like a little bit left. >> we learn programming to make them work.

we do computers and programming. at the bottom here, we talk to them and we press these buttons to make it go. and this is to turn it off. and this is to make it control on its own. if you press this twice, it can do any type of tricks. like you can move it like this and it moves. it actually can go like this. >> like, wow, they're just absorbing everything. so it definitely is a wholehearted moment that i love experiencing. >> the realities right now, 5.3

latinos working in tech and about 6.7 african americans working in tech. and, of course, those tech companies are funders. so i continue to work really hard with them to close that gap and work with the san francisco unified school district so juniors and seniors come to our program, so kids come to our stem hub and be exposed to all those things. it's a big challenge. >> we have a couple of other providers here on site, but we've all just been trying to work together and let the kids move around from each department. some kids are comfortable with their admission, but if they want to jump in with city of dreams or hunter's point, we just try to collaborate to provide the best opportunity in the community. >> devmission has provided services on westbrook. they teach you how to code.

how to build their own mini robot to providing access for the youth to partnerships with adobe and sony and google and twitter. and so devmission has definitely brought access for our families to resources that our residents may or may not have been able to access in the past. >> the san francisco house and development corporation gave us the grant to implement this program. it hasn't been easy, but we have been able to see now some of the success stories of some of those kids that have been able to take the opportunity and continue to grow within their education and eventually become a very successful citizen. >> so the computer lab, they're doing the backpacks. i don't know if you're going to be able to do the class. you still want to try? . yeah. go for it. >> we have a young man by the

name of ivan mello. he came here two and a half years ago to be part of our digital arts music lab. graduating with natural, fruity loops, rhymes. all of our music lyrics are clean. he came as an intern, and now he's running the program. that just tells you, we are only creating opportunities and there's a young man by the name of eduardo ramirez. he tells the barber, what's that flyer? and he says it's a program that teaches you computers and art. and i still remember the day he walked in there with a baseball cap, full of tattoos. nice clean hair cut. i want to learn how to use computers. graduated from the program and he wanted to work in i.t.. well, eduardo is a dreamer. right. so trying to find him a job in

the tech industry was very challenging, but that didn't stop him. through the effort of the office of economic work force and the grant i reached out to a few folks i know. post mates decided to bring him on board regardless of his legal status. he ended his internship at post mates and now is at hudacity. that is the power of what technology does for young people that want to become part of the tech industry. what we've been doing, it's very innovative. helping kids k-12, transitional age youth, families, parents, communities, understand and to be exposed to stem subjects. imagine if that mission one day can be in every affordable housing community. the opportunities that we would

create and that's what i'm trying to do with this >> [music] art withelders exhibiting senior art work across the bay for 30 years as part of our traveling exhibit's program. for this exhibits we partnered with the san francisco art's commission galleries and excited show case the array of artist in historic san francisco city hall. >> [inaudible].

call me temperature is unique when we get to do we, meaning myself and the 20 other professional instructors we are working with elders we create long-term reps i can't think of another situation academically where we learn about each other. and the art part i believe is a launching pad for the relationship building:see myself well. and if i don't try when my mom again. she may beat the hell out of mow if i don't try >> seniors, the population

encounters the problem of loneliness and isolation even in a residential community there hen a loss of a spouse. leaving their original home. may be not driving anymore and so for us to be ail to bring the classes and art to those people where hay are and we work with people in all walks of life and circumstances but want to finds the people that are isolated and you know bring the warmth there as much as art skill its personal connection. men their family can't be well for them. i can be their fell and feel it. >> i don't have nobody. people say, hi, hi. hello but i don't know who they are. but i come here like on a wednesday, thursday and friday. and i enjoy. >> we do annual surveys asking students what our program does

for them. 90 plus % say they feel less alone, they feel more engaged. they feel more socially connected the things you hope for in general as we age. right? >> and see when i do this. i am very quiet. i don't have anybody here talking to me or telling me something because i'm concentrating on had i'm doing and i'm not talking to them. >> not just one, many students were saying the program had absolutely transformational for them. in said it had saved their lives. >> i think it is person to support the program. because i think ida elder

communities don't get a lot of space in disability. we want to support this program that is doing incredible work and giving disability and making this program what supports the art and health in different way bunkham art as a way of expression. a way of like socializing and giving artists the opportunity also to make art for the first time, sometimes and we are excited that we can support this stories and honor their stories through art. we hope the people will feel inspired by the variety and the quality of the creative expressions here and that viewers come, way with a greater appreciation of the richness what elders have to share with us.

[music] >> hello everyone. welcome to the bayview bistro. >> it is just time to bring the community together by deliciousness. i am excited to be here today because nothing brings the community together like food. having amazing food options for and by the people of this

community is critical to the success, the long-term success and stability of the bayview-hunters point community. >> i am nima romney. this is a mobile cafe. we do soul food with a latin twist. i wanted to open a truck to son nor the soul food, my african heritage as well as mylas as my latindescent. >> i have been at this for 15 years. i have been cooking all my life

pretty much, you know. i like cooking ribs, chicken, links. my favorite is oysters on the grill. >> i am the owner. it all started with banana pudding, the mother of them all. now what i do is take on traditional desserts and pair them with pudding so that is my ultimate goal of the business. >> our goal with the bayview bristow is to bring in businesses so they can really use this as a launching off point to grow as a single business. we want to use this as the opportunity to support business owners of color and those who have contributed a lot to the community and are looking for opportunities to grow their business.

>> these are the things that the san francisco public utilities commission is doing. they are doing it because they feel they have a responsibility to san franciscans and to people in this community. >> i had a grandmother who lived in bayview. she never moved, never wavered. it was a house of security answer entity where we went for holidays. i was a part of bayview most of my life. i can't remember not being a part of bayview. >> i have been here for several years. this space used to be unoccupied. it was used as a dump. to repurpose it for something like this with the bistro to give an opportunity for the local vendors and food people to come out and showcase their work. that is a great way to give back to the community. >> this is a great example of a

public-private community partnership. they have been supporting this including the san francisco public utilities commission and mayor's office of workforce department. >> working with the joint venture partners we got resources for the space, that the businesses were able to thrive because of all of the opportunities on the way to this community. >> bayview has changed. it is growing. a lot of things is different from when i was a kid. you have the t train. you have a lot of new business. i am looking forward to being a business owner in my neighborhood. >> i love my city. you know, i went to city college and fourth and mission in san francisco under the chefs ria, marlene and betsy.

they are proud of me. i don't want to leave them out of the journey. everyone works hard. they are very supportive and passionate about what they do, and they all have one goal in mind for the bayview to survive. >> all right. it is time to eat, people.

public comment for each item on today's agenda. each speaker will be allowed up to three minutes when you have a 30s remaining, you will hear a chime indicating your time is almost up. when your allotted time is reached, i will announce that your time is up and take the next person queue to speak. we will take pubco