we will first hear from the appellant; then take of the comment speaking on behalf of the appellant. we will hear from the department of public works. following will hear from the -- than people who wish to speak on behalf of the parties of interest. finally the appellant will have up to three minutes for a rebuttal. are there any objections to proceeding in this way? the district supervisor, supervisor avalos, they have any initial comments? >> supervisor avalos: we look forward to having a hearing on this item. this is a project that i have looked at for a number of years in my district since prior to becoming supervisor. this land was rezoned from public use to residential about a year and a half ago. there's been a change of ownership for the project from a private developer that was going to build a smaller amount of affordable housing based on inclusionary to habitat for humanity project that would consist of 28 units, the original number of units in the original develop and plan. at a level of affordability good for san francisco. i am interested in hearing the arguments aroun

appellants listed. the subject property is at 800 brotherhood way. protesting a letter of determination octobered 26, 2012 and that the conditional use authorization under motion 17022 with a residential planning unit development at the subject property is still valid. we will start with the appellant and you have seven minutes sir. >> well, don't start keeping time yet. i note that there's still only four members of the board present, and i infer from that that the presiding officer won't be here. that being the case because we need everybody to hear the presentation. i would like to ask that this be be over to your next meeting so that all five members can be present. >> you know that our rules state that if the missing member cannot affect the vote then we will take a continuance ourselves. >> i understand that, but there is a difference between a presentation by an appellant body, and this is an appellant body without question, and trying to do it in a reit rittive manner, and this like all matters that are appealed to you is very important with

>> i'm here for the appellate and mr. president and commissioner and is to answer your question directly, she has no testimony to often as far as the continuance but you may have testimony in the body in the continuance which, is not granted and i do -- so interpretive services are not necessary to community what we are saying right now about her case. >>> the question is do you needer her to have this proceeding interpreted or only her testimony? >> so she understand what we are saying. i would think that she would want to hear everything interpreted. >> so if you could please interpret the matter to her? >>> i just wanted to make sure that we are using our services. >> so you have two minutes and then you will have a few minutes. >>> thank you very much at the last hearing, i wish i had a cup of coffee we talked so much about coffee but i want to talk about this case i was retained last night and promptly this morning i faxed a formal sub staigs of attorney and requested the date back with the attorney and board at 9:00

that's not what the appellants argue. there are matters with respect to which interpretation is valid and legal by the zoning administrator, but interpretation is not the same as changing or modifying, and what the action of the zoning administrator constituted was a modification which under the planning code only can be effectiated by the planning commission itself. therefore, the appellates ask that you revoke and declare null and void a permit which has [inaudible] by reason of a failure to comply with the condition established by the planning commission on may 19, 2005. >> thank you. >> okay. we can hear from the determination holder now, mr. guttle. >> >> good evening commissioners. steve guttle from farella braun & martel on behalf of the permit holders. let me briefly describe the project to you. 800 brotherhood way is a 7.7-acre site and approved for a subdivision with 182 units to be built. it's a complicated project. it required a host of permits since 2005 all of which are now in place. it is has been a challen

and we will start with the appellants. is the appellant in the room? okay. the appellants are not in the room. mr. qan, could you step forward for a minute. it's my understanding that the appellants didn't participate in the hearing officer's hearing. is that correct? >> that's correct. >> okay. so commissioners how would you like to proceed? would you like to hear from the permit holder who is here? >> let's go ahead with that. >> okay. >> thank you vice president fung and commission commissioners. i am here on behalf of crown castle which i will be leaving shortly to go into private practice and i want to take this moment to say i enjoyed my time before the board of appeals the last years and have quite respect for the board including the staff who has been courtesy and professional. the site that is here is been in existence since 2007 and was constructed under the utilities conditions permit that was issued by the city at that time. this was before article 11. 9b and well before article 25. during this process of article 25 we have come back for a permit

is the appellant in the room? i do not see the apellant in the room and we have not seen the appellant here this evening. we have the department here. if you would like to have the department speak? >> sure. >> good evening commissioners. john kwong from the department of public works once again. in this specific case for this permit for the service of chai tea at 79 new montgomery, the department denied in it this case for like foods. in the evaluation there is a starbucks coffee and jumba juice, who serve similar types of drinks it's relates to tai chi or chai coffee in this case. we denied it and we believe in the evaluation what was appropriate based upon the guidelines. thank you. >> thank you. is there any public comment? i'm going to give you two. i'm barry hearing it right now. >> eke. i also have 102-degree fever. i would like my three minutes. thank you. >> i have to give you two. >> you can have three. let's not fight about this. go ahead and take your three. >> i wasn't notified about the chai cart at

why don't we invite back the appellants for up to three minutes for their rebuttal

our reasons for joining appellant !z deborah stott and reviewing the variance are these.at the three story automatic garage was a separate structure and added that if itj9k% strcj"eñ the building permit was issued in error. in fact this garage is to be built one inch fromo i$ñ 124-128 fillmore street a pre1899 flat that is 11 feet wide and has only a brick foundation. the vibration of the noise from the large electrical motor is something to be considered in building so close to another house with a brick foundation. the second major problem with this elevator project besides the structuralx is that such a project is not consistent with the current transportation and planning policies ofpolicies city of san francisco. this neighborhood where the proposed project is planned is part of the octavia market rto residential transit orientation. even contemplate having a garage through the structure of their historic houses and no house or apartment building in this area is required to offer parking. curb cuts and graves are now discouraged and living streets -- such as germanei

the second issue raised by the appellant was the form of permits that was selected by dbi. we have provided to the appellant the 1963 permit showing that the construction of the building in question was an alteration of an existing building. consequently an alteration permit was required to take it down. that was dbi's decision. the permit holder's contractor spent more than a week consulting with dbi in order to certain file for the appropriate permit application. the contractor is here tonight and will be glad to go over the details if you wish. the contractor followed all of dbi's direction to the letter. the remaining concerns by the appellant either have already been addressed or will be addressed in the near future. there are some damage sidewalk squares that will repaired by the permit holder and secured the site with fencing. we provided the appellant with copies of the permit holder's water bills for 3,000-gallons of water used for dust suppression along with air district permit. the dbi permit wasn't always proper in accordance with all regulations. we therefore r

item 4(b) is another rehearing request at 498 hoffman avenue a letter from2b:y allen sowle appellantsting rehearing of appeal 12-117 decided november 7, 2012. at that time the board voted"8btw iho 2-1-2 vice president fung dissented commissioner hurtado absent on the basis that there was no error or -- three out of four votes required to be overturn a modified action whenéd!elc"p% a vacancy exists letter ofy determination was upheld by law. the regarding the legal dwelling unit. my understanding commissioners hurtado and honda have reviewed the video there for this hearing and are >> that's correct. >> good evening. my name is alan sowle. we're here because extraordinarybb:z<éf";f circumstances exist and rehearing is needed to prevent injustice because new acheddgg:z"y different facts and circumstances have been discovered relevant to the hearing officer's determination on thiso p0ñ matter. you might remember, those of you that were here before, that this was a -- the originalv of noe valley. in 1988 a building permitted was issued to reduce this from( rv three units down to two units

can i speak to the appellant? when i met with him and explained what it was going and said it was my problem and didn't have to deal with me. i gave him a copy of the plans and said "i don't have time to review them" and let's go over them and construction is supposed to start and going to lose money and he said it's my problem. okay. when will you review the plans? after the first of the year. and i explainedlet brief was due before that possibly get it done so we can talk and get it resolved and "no, i will take as much time as i need". thereafter i attempted to put together a brief. i waited for his brief to come. it was due december 20. -- i'm sorry. november 20. it wasn't filed timely and i was forced to write a brief on my own without knowing the issues and subsequently a brief was filed and it was late and i agreed that the board could hear it because i think the issues are the 311 notice and were dealt back in 2009. there has been no change to the plan. we're ready to g i am trying to get it before school

. >> president chiu: any other members of the public wish to speak on behalf of the appellants? seeing none, why don't we now hear from the planning department. you have up to 10 minutes for describing the grounds of your determination that the project is exempt from environmental review. >> good afternoon, president chiu, members of the board. i am brent bowling jer, environmental planner with the planning department. joining me is victoria wise, senior planner and project supervisor for the sf mta fell and oak street bikeways project that is the subject of today's appeal. also here today is luis montoya, mta project manager and other mta staff to answer questions. during testimony today, planning department continues to find that the project categorical exemption determination was adequate, accurate and fulfilled the city's requirements pursuant to ceqa guidelines in chapter 31 of the san francisco administrative code. decisions before the board is whether to uphold the department's decision to issue a categorical exemption and deny the appeal or return the project to departme

we'll start with the appellant mr. horcher, you have 7 minutes. >> it's getting late. i am soring you are feeling ill and congratulations president hwang and vice president lazarus on your ascension. all of that talk about coffee and the gentleman talking about going through law school in the '70s and i can relate to that experience going through night school. having a hard time trying to stay awake during procedures class. i recall a professor making key points and one thing he always said, you should always examine the issue of jurisdiction. i have two primary points on that issue. today as indicated or foreshadowed by brief the appellant decided to file an exemption and declare that they are going to be bond on the jurisdiction of the state of california. the california massage therapy council. i have that, if you could bring up the projector, please? it was filed today. >> what is this document sorry, i missed what you said it was. >> it's entitled -- this first one -- there is two of them. i'm sorry. for a state certified massage establishment. as you can see it's

the appellate court is just another type of jury, right? the supreme court is a very different kind of jury because the supreme court, and having only had one case before them, i learned very quickly that president -- precedent is not as important as the justices, who will decide what the law is. they will change what the lot is if they get a majority of their sisters and brothers to go along with it. to have a jury made up of diverse cultural views and understanding only makes us a stronger society. so i think -- i personally think it is a good thing. i do not think you ever separate your life from what you do. your personal experiences -- some of the personal experiences i talked about tonight shaped my life, and i think they are important parts of the decision- making process in may, that they did not overwhelm -- but they do not overwhelm the legal obligations i have in the case. >> i am going to ask a different kind of question, which is -- do you see the difference between the idea of a constitutional democracy, which is a term you ha

i can understand the confusion because thatch interpretation of the appellant which in fact there thisnit building. that proves our position that it was in fact3&b $r a two;ojmg unit building. also i would note building use was filled out as a one family dwelling. if they can provide evidence ofó0::8 y a building permit=,bfm application reviewed by the san francisco planning department and approved at ajkb!f dwelling unit which wouldn't have been allowed because the zoning would have limited it to two units(jp/i but had!jpdq third unit been allowed it would haveze+v3i required neighborhood notification, they have would have had to meet requirements for open:: space, exposure, parking. there'sg0 with that i'm available for any questions. thank you. >> vice president fung: were you aware of that 1999 permit? >> yes. it was referenced, and i included a summary of that in our appeal brief for the initial hearing. and i know that the -- they're relyingz/g third unit. and at the previous hearing we specifically asked them for evidence that they have a permit to that there was actually -- it

we'll start with the attorney for the appellant. >> good afternoon, commissioners. i think i made four valid points in the briefing and i'm just going to highlight those quickly and yield the rest of my time to the merchants. the first point is the most salient point which is the due process issue. i think the applicant has admitted or has not disagreed that at least two locations, 301 sacramento street and 303 south sacramento street did not receive notice of the permit. and they sort of tried to distinguish between the notice of the permit and the notice of an appeal and i think those are two very separate issues. the public works code says that businesses within a 300' radius are entitled to receive notice of the permit. what is the use of giving a notice of appeal after everything is said and done? the second issue is i believe due to radius services mistake, the whole block was missed floatfication area and that is because radio services calculates notice the block using the assessor's block as opposed to what is stated in the public works code, which is the mi

. >> are there any other members of the public that wish to speak on behalf of the appellant. seeing none, let's hear from the city departments public works and planning, >> good afternoon this is bruce -- city and county surveyor. we receive the application in august of 2012. in the application, submittable in september 25. received approval from the planning department on oct. 24, and granted tentative approval on december 10. received the appeal on january 4. we of course don't have any issues with this; wanted to grant tentative approval. >> terms of the board emily rogers, but slate of affairs for the planning department. you have the written material submitted. no reason why the subdivision should not be approved. the changes are minor. the changes to the location of the retaining wall, and the reduction to the footprint. these matters are not pertinent to the subdivision. there matters a concerned the building permit and should be appealed if that is a concern. second the written materials the appellant cited the change of ownership and is not a matter of the subdivisio