fung, thank you. commissioner hwang: thank you. >> there is the other appeal, commissioners. commissioner fung: i apologize, there is an appeal of the permit. commissioner peterson: so you have the second appeal which is protesting the issuance of the permit. >> the revision permit, yes. that is why i was not exactly sure how procedurally you would put that out. the net effect is what i am looking for, how you guys see that from a parliamentary or whatever it is standpoint, perhaps mystical steam or the adviser to the board, the city attorney, would know how to call that. i don't know. commissioner peterson: okay, thank you. >> mr. sanchez, no rebuttal? ok, commissioners, the matter is submitted. >> it is a different permit. icommissioner fung: for the main permit that was there before. president goh: they cannot have !zthe second without the fir, right? commissioner fung: they could. >> scott sanchez, planning department. it depends what the board wants to do. if the board were to uphold the appeal a

commissioner fung: mr. sanchez? this is almost an excessive use, is it not? >> that is a good point. -- this is almost an accessory use, is it not? >> that is a good point. we have not fully investigated that. that is something we could investigate further, but, however, given that it operates outside as well, that a factor in and have it. that may factor in so that it is not an accessory -- that is -- given that it operates outside, as well, that factors in the, and that a factor in so that is not an accessory. i think there had historically been in office there, maybe eight years or so, but most recently, it had been used for retail use, and just prior to the hearing, i looked in the reverse directories for 1986, and it was listed as a store. an antiques store. commissioner fung: an antique store. >> when we are confronted with something like this, when it puts someone out of business or even someone from a property, we do our best to find it all began -- all we can to see if a violation exists, and then

commissioner fung: yes. so, commissioners, if that is the direction we are going, then i would like to move to continue this, madam director. you want to vote on that first? commissioner hwang: i did make a motion. are we on a different page here? >> the idea is to continue the matter. commissioner hwang: i want is to use the right terminology. commissioner fung: when? >> commissioners, the next time we will have a full board is january 19. the calendar is already full, but if you want to add to it, you can, and then the next meeting after that we will have a full board is february 9. commissioner garcia: i would rather stay here late on the 19th then further prejudice the permit holder, and i think mr. kornfield wants to. >> we have elections. >> could i look at the ritz in submittals rather than going to the oral testimony to consider whether permits would be required, or did you actually want me to go through the testimony? commissioner fung: i think kirsten submittals is fine. >> ok. -- whitson submittal

commissioner fung: can we clarify that? mr. kornfield, i thought this was a separate permit, not an addenda. >> as long as we resolve the pr'm and fixed methodology. as long as there is a subsequent permit that replaces the scope of the problem that comes before the board, we are happy to do it. president goh: i was going in the other direction. i would uphold it -- or i would grant the appeal and overturn the release of suspension. therefore, the first permit would be suspended, and then the second permit would be mooted, because they cannot set back the ceiling 4 feet for a ceiling that was not permitted. ito me, the dropped ceiling has an adverse impact on the exterior. they could address it in a different way, and they began this work without a permit. the 4 feet set back, to me, it seems that would be very visual from the street because you are looking up and you would see the end cap of that drop ceiling. it would be very visible. those are my comments for now. commissioner fung: i've looked at it slightly differently. we

commissioner fung: ok. president goh: moving onto paragraph three, immediately before the -- >> sorry to do this. i think to add it in the beginning -- if we are going to remove demolition from the last sentence, it does not make sense to put it in the first sentence. it is not a necessary part of the finding. president goh: that is fine with me. commissioner hwang: so it would be there is credible evidence in the record that they drugs began construction work on the property -- that bay drugs began construction work on the property. that is what you were referring to, right, commissioner? commissioner fung: yes. but whether there is a straw vote for something, i think we need to do that first. if it is not going to carry, we should not be wordsmith in this to death. -- wordsmithing this to death. commissioner peterson: i tend to agree. i appreciate the wordsmithing to have shut the issues, but in light of the history of this case -- to hash out the issues, but in light of the history of this case, there we

commissioner fung: okay. can you talk a little bit to how the department of use this particular as a minor compared with a major encouragement? -- encroachment? >> this would be very similar to other appeals that came to the board. 791 bruno comes to mind right off the bat, where there was an existing at unimproved right of way, ok, where the property owner construct something beyond the 25%. based on the nature, we deemed it a minor encroachment permit. this is an existing condition dating back to at least 1991. there has been no, based upon the records we have, there have been six complaints in this area. only one references to this fence. obviously, it is an existing condition. we determined that because of the existing condition, along with the elevation difference, but they needed the retaining wall to satisfy the construction of the baseball diamond, the age of the encroachment, that it would be appropriately issued as a minor encroachment because it is an existing condition. commissioner fung: what wer

after you, commissioner fung. commissioner fung: i think that i would like to incorporate some language that goes beyond just the city. you may know, madam city attorney, but i am going to do it. commissioner garcia: we cannot put something in our rules. commissioner fung: why is that the standard? >> the only authority once the tender 15-day period has expired, which is set by law, that is based on case law, and there is one case that you're all familiar with, and that is the only standard that has been set that the city would be stopped from applying its own time limits when the city is somehow at fault. commissioner garcia: but we have latitude in that. if we feel someone was not properly advised to what their rights are, we have had jurisdiction in the past, based upon the idea that even though it rises to some legal level, it does. >> the example you just gave is where the city is the actor that did something that the board finds. i thought commissioner fung was referring to a non city actor causing the laten

commissioner fung: i am sorry. is there -- perhaps the project sponsor would like to respond to the suggestion at this point by commissioner hwang. >> i did suggest to mr. hwang that i think we would welcome a condition of approval that requires that suf a-- usf and uta include consultation with dpw in the ongoing planning process. we did have a chance to look through our settlement agreement. there is an outside date of three years. at that point, the parties agree that if they are not agreed it is submitted to arbitration. we have an outside timeframe intended to function as an outside time frame. we hope to do it sooner than that. if there is really a focus on that eastern and of the encroachment, -- eastern end of the encroachment, we would look to include dpw in the ongoing community process and direct the director to specifically consider, as part of that process, whether some modification of that fence might not be appropriate in the future. commissioner hwang: the problem i am having with that is both parti

commissioner fung: yes. but whether there is a straw vote for something, i think we need to do that first. if it is not going to carry, we should not be wordsmith in this to death. -- wordsmithing this to death. commissioner peterson: i tend to agree. i appreciate the wordsmithing to have shut the issues, but in light of the history of this case -- to hash out the issues, but in light of the history of this case, there were discussions about reconsidering the merits or adopting the findings. i am still struggling with accepting the findings. in truth, it still has to do with the validity of the permit and the technicalities there. but i do appreciate all the wordsmithing. it was helpful to hash out some of the conflict. you are interested in dealing with the merits? commissioner fung: commissioners, can we, in essence, reaffirmed the decision making process -- reaffirm the decision making process and then bifurcate between that and the making of findings? president goh: how would you like to do that? take a

commisssioner fung: ms. short, is it the department intend to issue one contract for the replacement of all for trees? -- four trees? >> the replacement would be in house, but we would make all efforts to minimize any delays and have it ready to go. commisssioner fung: what time frame is the department looking at? >> probably if the board decision is to uphold the removal, we would try to coordinate for january to remove the trees and to the front garden and replanting within two to three weeks of that. commisssioner fung: a relatively short time. >> for us, quite short. our order indicated a 24 inch removal tree, which is generally the size we usually installed. vice president goh: a 24 inch blocks -- 24 inch box tends to be 5 feet or so? >> depending on the species, i would say more like 8 feet tall. the trunk dynameter in an l. might be as much as -- in an elm might be as much as 2 inches in a 24 inch box. i have 25, 30, 24. president peterson: the timetable you said for your department is really quick --

commissioner fung: initially, -- 4-1. commissioner garcia: initially, it was 3-1, the tissue were absent, and then you voted. -- and you were absent. commissioner fung: if that is the case, then i think somebody should make a motion. commissioner hwang: i do not believe that the evidence is appear sufficient base the we saw. commissioner fung: we have no re-hearing request. vice president goh: we could continue yet again and ask evidence. for example, the public speake'' s photographs, and if we're going to do that, i want the date on the other photographs, as well. that is the possibility. commissioner hwang: furthermore, i take issue. there is no opportunity to cross, no opportunity to understand fully what was stated in the declaration, when we have an opportunity here to do this, so i think a re-hearing is what i would vote for. >> i think the real term would- be "re-opening." commissioner garcia: there are the objections i raised having to deal with paragraph four. even if they had done work before, they actually got

commissioner fung: ok, thank you. vice president garcia: to follow-up on what commissioner fung would say, if we were to overturn, how to get back to planning? >> and, again, as i understand the latin phrase, it basically can happen in today's world, but it is as if -- vice president garcia: i understand what that means legally. that would be the argument you would make to planning. but how do you get planning to even make the argument, is what i am asking you? >> if you deem it completely effective instead of, you know, deemed complete from when we thought it was complete, when we have documentary evidence, the email from planning, saying "this looks great, a couple of minor things, labeled as and multipliedl and -- label this and multiply this out," these are terms of art that have very significant rights and privileges, as compared to when they are denied, and then there

commissioner fung: you just give up the permits? >> yes. commissioner fung: yes. there are some guidelines that we have to follow. until the new law is passed. commissioner hwang: may i? vice president goh: go ahead. commissioner hwang: how long is the appeal window period? >> hold on, please. two weeks on the notice. and, commissioner hwang, it appeals to the department. commissioner hwang: yes, and then whatever the director decides. it would only be the notice. and then it would go up. >> correct. the notice would cut out when there is a tentative approval, so is prior to installation. -- it is prior to installation. commissioner hwang: we heard from the requester that the jurisdiction requester is down the street. do you know? >> no. commissioner hwang: so you would not know if requester falls within 100 feet, should this legislation be retroactively applicable? >> i think we could probably figure that out. commissioner hwang: i was just curious. vice president goh: we heard something about undergrounding. what is going on with the undergrounding of the boxes?

fung? commissioner fung: no. commissioner garcia: no. >> ms. peterson? commissioner peterson: no. >> ms. hwang? commissioner hwang: aye. >> thank you, the vote is 2-3. >> since that motion does not pass, call the next motion. >> and that motion was for mr. fung to elevate mr. garcia to the vice presidency. on that motion, goh goh? president goh: no. commissioner garcia: aye. commissioner peterson: aye. hwang no. >> the vote is 3-2, and mr. garcia is elevated to the vice presidency of the board of appeals. commissioner peterson: okay, congratulations. >> we move on to item three, which is commissioner comments and questions. commissioners? and item four, which is the adoption of minutes. icommissioner garcia: i had bridget commissioner fung: i had one comment. i thought we had change the way we tally the vote, when there's somebody not attending? if there is no correction, i would like to correct that threat. -- i would like to correct that threat. >> thank you for that correction. president goh: there are no further comments to adopt that correction? >>

after you, commissioner fung. commissioner fung: i think that i would like to incorporate some language that goes beyond just the city. you may know, madam city attorney, but i am going to do it. commissioner garcia: we cannot put something in our rules. commissioner fung: why is that the standard? >> the only authority once the tender 15-day

commissioner fung: you also mentioned the location? >> yes, and after looking at all of the locations, we decided that none of the locations was suitable, so we decided to locate the compressor unit in the existing garage, in the corner, and that is the corner that is furthest from any of the neighbors. that is at the corner of benton and andover. vice president goh: -- commissioner garcia: how is that different? >> it was the ground window. it was to the opposite side of the building. and, again, it is going to be enclosed in the closets, acoustically insulated, and hopefully reduce to 60 decibels or less, which

>> -- commissioner fung: yes. vice president goh: i guess i will china in because i am going the other direction. -- i will chime in. additional briefing is allowed at three pages per party. we did not get any briefing. the questions that we had and the reason we wanted the continuance was for nor is steady for review of the falls of permits that would be needed for this, and for the hours of operation, which we got, we got a noise study only for the ambient noise. we did not get a noise study with regard to this compressor or with regard to the things that commissioner fung mentioned that could be used to reduce the noise for the appellant, and we also heard then at the original hearing that there was this lawsuit, it was supposed to be decided in september, so given that we gave the party's an opportunity to file briefing, it to do the studies, to come forward with a viable alternative, i am inclined to overturn this permit, brigadoon not think this is a tenable situation for this appellant to live with a compre

commissioner fung: you also mentioned the location? >> yes, and after looking at all of the locations, we decided that none of the locations was suitable, so we decided to locate the compressor unit in the existing garage, in the corner, and that is the corner that is furthest from any of the neighbors. that is at the corner of benton and andover. vice president goh: -- commissioner garcia: how is that different? >> it was the ground window. it was to the opposite side of the building. and, again, it is going to be enclosed in the closets, acoustically insulated, and hopefully reduce to 60 decibels or less, which is about the december reading without the compressor reading, and as far as the schedule, originally, we have the schedule for the weekdays to be between 9:00 a.m. and -- we would like to propose that she be allowed to do her work. commissioner hwang: can you put the picture of the site of again, please? >> sure. the original location was back here in the rear yard. the rear property line is here, and we have decided that the

commissioner fung: i presume the baseball field was there forever? >> the baseball field has been there as long as anybody i have talked to at usf can remember. >> thank you. mr. quan? >> one thing i forgot -- and have to make a declaration. my brother did attend usf and graduated there many years ago. i forgot to report that. that would in no way cloud my judgment on my presentation. actually, he got an rotc scholarship. please keep in mind this is a minor encroachment permit and is for vocable at the will of the director of public works. -- is leave vocable at the will of the director of public works -- is revokable at the will of the director of public works. they are looking at traffic calming, landscaping, and the better streets plan. should at the future some plan be devised, the department would gladly work with the local community and usf to reconstruct the sidewalk to come more into compliance with the better streets plan. at that point, the director will decide if it is appropriate to revoke the permit, depending on the situation. neverthel

commissioner fung: i will determine which side i want to visit. commissioner hwang: what you're going to say is that if we want to. the board will maintain, again, the discretion to go to whichever we want to. >> i think in the interests of making sure the process is quick, and people get into their hearings quickly, it really should be neither. there should be an opportunity for rebuttals during the actual session. sometimes there were held back from the paperwork. there are some very complex cases, including one where i think it would have helped both parties have a rebuttal. just moving on, i think there should be items for continuance on this calendar. to wait around and ask for a continuance. they may agree to it anyway. i think it would be better if you had a request for a continuance. in the case of the project tonight, that would give them a chance to request it. we're hearing from them what it is that is compelling. we may have voted to do the continuance, this is something that the planning commission does. i thought i will throw that ou

commissioner fung: thank you. >> is there any public comment? seeing none, we can move into rebuttal. president goh: i actually have a question for mr. sanchez before we take a bottle. -- rebuttals. i seem to recall we had a case of a hot tub covering in noe valley that was meant to come to us and did not come to us because the department decided something about it was ok. the you have any recollection of that? >> got sanchez, planning department. i do not have any recollection of that. i did review what joe duffy had in his file. it would clearly require a variance. president goh: because of the size of the structure? >> it covered the entire rear yard and therefore would not be acceptable under the planning code. president goh: what if an individual has a hot tub and a cover over just that hot tub? >> the planning code does provide for obstructions in the form of a garden shed or something like that. that would be no more than 100 square feet no more than 10 feet in height. that would be covered. i will double check on that. they could have th

commissioner fung: ma'am? is that sign related to the wireless box, or is it related to other elements on that pole? >> no, it is posted on the wireless box. yes. >> next speaker. >> my name is gay. i came on behalf of someone, whose jurisdiction request is next. the way one goes is maybe the way the other is going to go. this is from janet, who lives across the street from me and a couple of doors down from the other gentleman. commissioner fung: are you going to read the next -- >> no. we residents of 27th avenue request that the board of appeals grant us the same review process that is now city and county law. the opportunity for review of proposed wireless facilities in front of our home.>> hi. my name is jeff cooper. i am also note actually be requester. because the cars are so intertwined, i thought i would take time to comment. -- because our causes are so intertwined. the request here is based on common sense. without any sort of notification, we were effectively denied our right for an appeal. an anal

commissioner fung: i will start. it is difficult for ms. lyons to have a new structure that crosses a lot of your living space, since she has lived there a long time. 9.5 years is quite a substantial time, and, therefore, what you got used to was a valuable view, light, and air resources for her. the issue here, however, is also the right to expand upon his required living space. i do not know if there are further expansion problems that will happen in the future. this particular expansion is very modest. it occurs where the side yard and, in essence, a zero property line situation, even though there are setbacks -- it occurs where this year -- where the side yard is, and, in essence, a zero property line situation. it allows views and light and air above. given the fact that it is very modest, given the fact that it is toward, that it is stored there for a four-bedroom, i see no reason to overturn their permit -- that is located there at the bedroom. commissioner garcia: it looks on to ms. lyon's -- lyons' windows, but it is unfortunate, a

commissioner fung: can i not bring it up? i will see what the vote is. >> i think i would need to look into that question before i would be comfortable. i would have to research whether it is required to provide a mechanism. it was 4 when new evidence comes forward, or maybe there was some error, to correct the decisions. commissioner fung: within 10 days. how is new information going to come within 10 days? and therefore, i agree that there may be a situation where we want to address something, right or wrong, but the fact is, i could not think of it. there was a reopening. it is almost the same thing. vice president goh: i believe that if people knew they had to file rather than lose it, we would see fewer. maybe the problem is somehow getting across to people. secretary hous -- pacheco: sometimes people do that. >> there are the underlying environment determinations with in those 10 days. vice president goh: ok. president peterson: so we can do some additional research on that, commissioners. commissioner garcia: for the r

>> you are right, commissioner fung, thank y

commissioner fung: ok. president goh: moving onto paragraph three, immediately before the -- >> sorry to do this. i think to add it in the beginning -- if we are going to remove demolition from the last sentence, it does not make sense to put it in the first sentence. it is not a necessary part of the finding. president goh: that is fine with me. commissioner hwang: so it would be there is credible evidence in the record that they drugs began cons

commissioner fung: thank you. president peterson: thank you. mr. butler, the time is up. >> i understand time is up. the permit holders were not in the room during the swearing-in. secretary pacheco: if you intend to testify during this hearing, please stand and raise your hand. do you solemnly swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth? president peterson: mr. gladstone? >> ok, my name is tom. it was a company my father founded 32 years ago. it is a small private lender. this property had to be taken back due to foreclosure. he stopped making monthly payments. we feel that the tick advantage by not following certain rules by leaving the site in an unpleasant state. the developer also took the advantage of us. he lost all of this money that was invested with us, as well. there is no money or profit to be made on this foreclosed property. the picture in the middle is it. there is the historical report from the best known living historian who had been retained by mr. butler himself. there i

fung's if you could shift to mr. fung, i will turn on that one. vice president garcia: the d.c. anything in the papers that caused you to feel if the bi had been aware of anything going on there they would not have been drawn -- it would not have drawn an issue to nov? >> i checked the plumbing fixtures again while i was investigating this in preparation for the hearing. as you state, if you are not cutting at the pipes and removing the fixtures like a toilet or a cent, that would not be able violation. vice president garcia: did you read the material having to do with the counters in the walls? did you feel that perhaps work had been done that was not properly permitted? >> investigating the complaints that were found -- that were filed, there was one in 2010, worked not according to plans. that was debated by a building inspector on june 1. he saw the work was being done in accordance with the plans. the second complaint was filed on june 8, which was that the work had started without a permit. but by june 8, the permit had been issued for two weeks. the complaint came out a c

officer suguitan and fung were met by the woman outside of her porch. officer suguitan observed at the front door of the residence was open and stepped inside. officer suguitan noticed mr. smith and mr. rios, an additional roommate, were standing face to face having a conversation. both men were approximately 7 feet in front of officer suguitan. officer suguitan looked at both men and stated, how are you doing, we are here to help. mr. smith and mr. rios both faced officer suguitan. immediately, officer suguitan realized mr. smith's and were behind his back and concealed from officer. officer suguitan directed mr. smith to "show me your hands." instantly, officer suguitan here's what he believes is an item quickly being taken out of a sheaf, and without notice, mr. smith raises a large machete above his head and in close proximity to officer suguitan. officer suguitan, fear for his life, draws his department farm, and that close proximity begins to rapidly backup. mr. smith begins to advance on officer suguitan. of a suguitan continues to back up, but b