we will start with the appellant and his attorney. you will have seven minutes. >> thank you, commissioners. i just received during the recess for response, i have not had an opportunity to look at. based on that, i would be seeking a continuance of this hearing to permit myself to respond to this. >> are you talking about the response dated march 17th? >> correct. >> i have not seen it until a few minutes ago. >> there was another attorney. >> he is a general manager. "did she receive it? >> i am not aware of it. >> we understand that you just served the party. >> i just realized there was no proof of service attached. i was looking at my files. i thought that there was surface to counsel but apparently it did not go out. >> it was not served. >> you are not party to this? >> no, i represent a property owner. >> commissioners, what is your pleasure. >> i move to continue. >> that would be my ordinary feeling but i don't know the relevance of the document that the appellant did not receive and how it really bears and with this board of

from what i am hearing today, the appellant believes this is in violation of the law. we do have the city attorney here, but it is the department's opinion that it is permissible, despite the fact that the projected change from alteration to new construction, as long as the underlying determination remains unchanged. the department issued -- did not issue a new examination, despite what the appellant is saying. it is for the conclusion that 146 ord street is not an historic resources or in an historic district. according to historic maps in the department of public records, the cottage of the rear of the property was constructed either shortly before or after the 1906 earthquake. the cottage and underwent a series of the exterior renovations, which included new windows, possibly a new stair entrance. whereas a side building was renovated to victorian style, the existing cottage contained classic elements. as explained in the evaluation dated september 29, 2008, in order to qualify as an historic resource, the building must not only be shown to be significant to the cal

we understand the appellant's concerns. we try to address those issues in order to protect the building. we suspended the permit and review the permits. what was proposed under the permits was acceptable. we did note that there were issues with the exterior of the building. that is what commissioner fung noted that was earlier this year. it was to address some issues on this building. it was in addition to one of the permits that was suspended by this action. the permit that we will see as fixing one of these problems cannot be issued until the suspension will be released on the permits here. the appeals of the suspension prevents the permit from being issued. it removes the existing steel gate at the front or replaces the windows with the same kind of places the exterior door with the same kind of paint on the outside of the skill building and you can have some consistency on the outside of the building. we appreciate the concern about the replacement permit. it has not yet been issued. if there are issues that we need to c

the appellants has argued that i should demolish or add-on to the existing building. i chose my approach for several reasons. the cost for free, liberal -- [bell rings] supervisor chiu: thank you. if there are other members of the public to would like to speak, if you could line up in the center aisle. >> thank you. open space is in short supply here in the city. obviously, this project is trying to get around the fact that all those other -- supervisor chiu: i believe you spoke already on behalf of the appellant. next speaker? >> good evening. i've been in an around san francisco since the 1980's and i'm here to speak on behalf of project sponsor and applicant. the property 126-128 ord is not adjacent. ord is a flat frontal yan cottage beautifully restored and painted and has a formal front garden. it's significant and based on its historical architectural facade with its front garden noted as a feature. several front yards have come into discussion here. they vary in their patterns and styles. there is no formal or intentional relationship between any. there are no

the third issue the appellant is raising is the determination of the historic district and the proposed project will have a negative impact on historic resources. while the district may agreed with the appellant that there are historic resources in the neighborhood, the department does not agree that the proposed project will be a negative impact to those resources. there is no substantial credible evidence provided by the appellant to contend that 134 ord street is a contributor to the district or the project will have an adverse impact. 140 ord street is the flat front italianate. it was noted as a well- preserved italianate building of fine details and of former garden. of the proposed project will be 25 feet from the front property line and will not touch the adjacent historic resource. from an architectural and urban design standpoint, as you can tell from this photograph -- the flat front lacks continuity in architectural style. these are setbacks to being considered a potential historic district. the department believes there is enough obstruction in these front setbacks -- in of

if you wish to speak on behalf of the appellants. in other words, the parties to just argued for the appeal of this project >> if i could have the screen? president chiu: thank you, sfgtv. >> a very large document you have before you, regarding supporting of the appeal. first of all, there are two highly possibly volatile gas lines at parkmerced that requires immediate action before any further action. secondly, this is a model of urban density and development. vacant space, infill development, professional integrity.

, by the architect for the appellant, and by counsel for the project sponsor.one, absolutely no one was deprived of an opportunity to argue their views on this historic preservation issue, either in writing or before the board today. we received a full analysis from all sides. the issue is ripe for decision, and we should decide it today. according toly, mr. president, i move item 48 and i move to table items 49 and 50. president chiu: colleagues, supervisor weiner has proposed that we affirm the planning department's decision. is there a second to his motion? seconded by supervisor campos. roll call vote on the motion. >> [roll call] >> there are 11 ayes. president chiu: the motion is approved. if we can now go to general public comments. >> the next item on the agenda is the opportunity for the public to address the board for two minutes on items within the subject matter jurisdiction of the board, including items on the adoption without committee reference. a portion of the agenda yet excluding items which have already been considered by a board committee. s

seeing none, at this time, why do we not hear from the appellant for a rebuttal? >> thank you, president chiu and members of the board. i am not sure what mr. gladstone was reading. i made no claims about the site generating landslides. i made no concerns about the foundations of the building. i made no claims about errors in drainage. we are here about the empowerment to review given to this project. we are not here to decide whether or not these structures will cause an environmental impact. we are here to let you know that the review given by the department to determine what level of review the environmental impact that this project may cause was not properly assessed from the department. it is in a sensitive environmental area. the project is clearly mitigated. the network case is directly on point. they are using the exact same terminology that was rejected by the court bench. they are using another technique that was rejected by the court. these medications will come down the line. let's send it over to the building department and they will resolve it. i am g

the appellants will have three minutes for rebuttal. any objections to proceeding in this way? mr. williams, the floor is yours for up to 10 minutes. [inaudible] >> i am wondering if the microphone at the podium is on. >> testing. >> i am representing the appellant and the surrounding neighbors. this proposed project was granted a categorical exemption in error. this is in a known hazards own. by definition, this is a sensitive environmental area and is the site of what we believe is the only fatal landslide in the history of san francisco. it is in this unusual zone. an attempt to stabilize the soil and the proper review from the department was not accomplished. the project exceeds the maximum of side -- size all-out for a class 3 exemption. it is limited to three single- family homes. although three homes will be built, the fourth home is also involved. the cumulative impacts of the known addition, nearly identical projects, the same area, the same neighborhood may create a significant environmental impact. these projects are not speculative. they are almost certain to occur. the

the appellant wants them to happen. it is a matter of getting clarity for everyone about what needs to be done to achieve that. removing the steel gate, which has always been a point for the appellant. keyboarding will come off the windows. the windows are to be replaced. any doors that needs to be replaced will be employed -- will be replaced in kind. i believe is not at the issue stage. we have a hold on the property overall. we have placed a hold on anything that happens on this property. we are trying to do what we can. if we can get a list, something that would be simple and easy for us to get all of the points on the plans and get the permit holder on board to do all of that work, that is what everybody wants. >> do you feel like there are a anyhanging chads? are there any issues that would cause for you to rethink having lifted the suspension? >> no. all issues raised have to deal with the permit that is waiting in the wings. >> mr. sanchez, i am still confused about the door at 731. we saw photographs-share would

i respect the appellant and appreciate his argument. however, we simply have a disagreement. we deal with financial-services, not listed amongst bars, movie theaters, restaurants, all of the other uses that are specifically called out. since it is not called out, it is not subject to the formula used controls, and we have applied those appropriately, in the planning commission has also applied this appropriately. so i am available for any questions. commissioner hwang: has anybody in the past objected to the planning commission note -- commission, financial uses? >> to my knowledge, there has been no appeal to the determination that financial services are now subject to formula control. commissioner hwang: my next question is, so what would fall under that category? i think the list has created a lot of questions, the one that mr. hernandez initially put up, or, actually, you put up, but i did not see the header, so there are other things listed. i did not memorize all of them on the list, but i did see automotive. when those fall within the formula retail -- with those fall w

the appellant, or the requestor, did not go through the process. i'm inclined not to grant jurisdiction. i wish there was some way we could codify what seems to be an arrangement that would prevent someone from standing on that deck and looking toward the window. all that is left to us to do is to hope that we are dealing with someone who is honorable, and we have no reason to think he is anything but honorable, and will do just what he said here. as for jurisdiction request, i would be inclined, with the others who have already commented, to not grant jurisdiction. >> i don't have anything to add. commissioner hwang: the timing of the notice and the change of ownership makes for a sympathetic set of circumstances. for that reason, i would be inclined to grant the request for jurisdiction. but, i will probably be shot down here. commissioner fung: i would make a last comment that there was a time period of about a month in which the appellant could have and did not. i think that is what is going to sway me. >> is their emotion, commissioners? commi

from what i am hearing today, the appellant believes this is in violation of the law. we do have the city attorney here, but it is the department's opinion that it is permissible, despite the fact that the projected change from alteration to new construction, as long as the underlying determination remains unchanged. the department issued -- did not issue a new examination, despite what the appellant is saying. it is for the conclusion that 146 ord street is not an historic resources or in an historic district.

the appellant they are going to change the categorical exemption. just as a matter of courtesy and fairness. not notifying the environmental review was going to be retroactively alter gives -- altered gives the impression of secret processes p.o. -- secret processes. not informing us is the game playing. it is an attempt to create a statute in this chamber. in this particular case, there was a mistake made. this is the subject site. the project started out as a minor alteration of 136 ord street, fall 2008. the project was reviewed. that is exhibit two and three. on december 31, 2008, the department found that the cottage was not an historical source, and therefore the alteration of requested could go forward. for reasons of his own, the developer abandoned the project to alter 136 ord street, and in july 2009 instead presented an entirely different project, a project to build a three-story building right in the middle of the green space that you see. this is the approximate location of the new project. this is where the error occurred. instead of r

let me ask if there are members of the public who would wish to speak on behalf of the appellant? if you could step up to the microphone, each speaker will have up to two minutes. the first speaker, please. >> good afternoon. i am a civil structural engineer. i have been retained by the neighbors of the neighborhood to evaluate the engineering aspects of the project. i put together a report that has been submitted to you in exhibit b. if you have any questions, please feel free to ask. there are two reports. the earth sciences report as well as the trans sport -- trans pacific report. there is acknowledgment that this project and the staff report acknowledges that we are in a seismic slide hazard zone. the issue is that there is a certain standard of care that needs to be applied to the value wait projects in such a zone. those are spelled out by the california code of regulations. there is the seismic hazard mapping act that came into effect in 1991 that spells out. there is a document that is prepared by the california geological survey that could be used as a commentary to reint

please carry on conversations in the hallway. appellants, permit holders, and department respondents each have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their commons within this time. members of the public who are not affiliated have up to three minutes each to address the board, and no rebuttals. to assist in the accurate proportion of minutes, members of the public are asked but not required to submit a speaker card or business card to staff when you come up to the lectern. cards and pans are available on the left side of the podium. the board welcomes your comments and suggest are customer satisfn forms on the left side of the podium. if you have questions about requesting a rehearing or hearing schedules, please speak to board staff during a break, or call the office tomorrow morning. we are located on mission street. this meeting is broadcast live on san francisco government television, cable channel 78. dvd's are available for purchase directly from sfgtv. a

if you wish to speak on behalf of the appellants. in other words, the parties to just argued for the appeal of this project >> if i could have the screen? president chiu: thank you, sfgtv. >> a very large document you have before you, regarding supporting of the appeal. first of all, there are two highly possibly volatile gas lines at parkmerced that requires immediate action before any further action. secondly, this is a model of urban density and development. vacant space, infill development, professional integrity. if that is true, half of the city is suburban korea that is nonsense. the management deserves better from the city as a partner in the department's economic development. this is limited in scope and defies possibly that the city could be an active partner for development because economic development is an important part of the allocation of resources necessary to deal with the mitigation effects. there are the boundaries of the project, impacting san francisco university, and thank you very much. president chiu: thank yo

. >> will start with the appellant or his agent. please step forward. you will have seven minutes. >> good evening, commissioners. i am appealing the 45 days because i think it is way too much for a small business to lose that income for 45 days. it is something we did not do intentionally. we had no intention to sell cigarettes to minors. and we had an employee who checked the id. when he looked at it, it said over 18. a request to check the id if you have it. >> will go into closed session when the board requests it to look at the idea, but if you have other arguments, you should make them now. >> i just want to say 45 days -- we cannot afford to close 45 days. we have all the posters on our doors. we checked the id all the time. we do the best we can to not sell cigarettes to minors. commissioner fung: did you only store in 2008, when you were cited previously? >> yes. this is our second ticket in 10 years. president goh: you owned the store in 2007. did you appear in front of us before? >> yes. president goh: i think i remember. thank you. vice presi

the second issue on the use the side, i spent about an hour with the appellant and we went through the plants and it is close to 4000. that's a concern for the department and we will make sure they comply with the plans which are showing use size of less than 4,000 feet. we have a disagreement with the appellants and what counts toward that use side in terms of an exterior corridor which we believe is not part of the use and the appellant argues it is. the appellant will have the ability to file a rehearing a quest on the board's appeal and there is a subsequent revision permit that addresses the walkup use. they will be revising the plans -- we had approved it without the 312 notice. it did not require a conditional use for the walked up but they will be revising the plans to make that interior so it will not be a walk up use and will not require the section 312 use. the board declared correction last night to the department that they want building department and planning department to monitor the construction and insured does comply with the use size limitation and what the plans sta

could you respond to the appellant's statutory argument, please? >> yes, this is in our papers, as well. essentially, i do not know how many lawyers there are on the board. construction for every way you want to swing. in this particular case, i think the one that was clearly applies is that whenever you have a list of things that are covered under any kind of law, and one thing is not listed there, that exclusion is significant under the law, and it is intended to be read that if it is not on the list, it is not covered. the status of purpose of the legislature and the other lawmakers of making a list of specific items. i would say that that is the sort of simplest way to understand the statutory construction. commissioner peterson: what about -- >> the list that is being put out is not formula retail. it lists what is permitted or conditional or whatever in a particular zone, and in the planning code, it is there to tell you what kind of permit you need, but any one of those tables is not meant to give you a definition of the formula retail. there

we will hear from the appellant to describe the grounds for the appeal. we'll take public comments from individuals who wish to speak on behalf of the appellant. we will hear from the planning department who will describe the grounds of the d.i.r. we'll hear from individuals from the public who will speak on behalf of the public interest. any objections in proceeding in this way? if not, why don't we open up the hearing. let me ask if there is a representative from the appellant. >> thank you, mr. president, members of the board. i'm ted for the park district appearing for my board today. very briefly you know that the east bay district is the park district for these counties representing over 25 million people. we have 65 parks, over 1,000 trails. we are the oldest and largest park district in the united states. the park district operates tens of thousands of people use the park each year. we have a large sea youth education program. we began working with the public utilities commission on this horton project to address the impact of will have on the par

supervisor chiu: what do we hear from the representative to the appellate? mr. williams. >> thank you. i am stephen williams representing the neighbors association which includes the area of 17th and markets. the environmental exemption was given to this project because the department simply failed to conduct the required environmental review for this project, period. the review was not done. two, the department description was wrong. it is a completely different projects. 3, the wrong categorical exemption was applied because the review was done for a different project. the team even had the incorrect address. as a result, this led the department to award the exemption. this is still incorrect. hopefully you received my -- attached thereto is the internal document in question. please review with. exhibit two is the historic evaluation bonds, and three is supplement to that document he the -- to the document. this is the heart of the appeal. it is stamped on the third page of exhibit 3. this was done for a completely different project, a different address, differ

. >> i appreciate the president taking the initiative and asking the appellate to work with the department. we will work to make sure that the issues will be addressed. the one that was before previously was 739 commercial. it does have as part of its proposal with the building permit to add the acoustical ceiling for the space. if it is the board's desire and the modification of release of suspension if the board wanted to remove this from the scope of the permit. in regards to the door for the commercial being recessed, i believe that the permit history does bear that out. we were just reviewing the permit history and there was permits from 2002 and 2006 that had that listed on there. i don't have all the details but it was ultimately reinstated. there was modifications to the storefront. there is a note to that the door was as per the plans which had been reviewed by the board of appeals. this was a complaint without a permit. that was updated. on these two permits, the plan showed this from the sidewalk. i have looked at this and this was to the board of appeals. this was an extension.

and if there are any other members of the public who wish to speak on behalf of the appellant, now is time to get up. >> i am a 28-year-old native san franciscan. i grew up across the street from lake merced. i took classes at san francisco state, right next door. i strongly oppose the demolishing of affordable housing in san francisco. >> good afternoon. my name is maria elena. i am a resident of parkmerced since 2003. i used to live in manhattan. one of the biggest reasons i moved back to san francisco was because of parkmerced. maybe you don't understand, but i actually pay $2,017 a month of land. that is for me, my partner, and my dog. i live in a home where there is rugs, a bathroom, a living room, a dining room. if you could please just looked at me, because i am actually a resident and i have a home there. if you could come to parkmerced one afternoon, i would love for you to come with me and i will take a tour with you and you will understand why there is so many people here opposing this eir. i know many people have spoken and actually have said much of everything i wanted to

on those thresholds, the appellants have met the burden for rehearing. the court has severely limited the doctrine of vested rights. you cannot give a permit and then claim the protections of the law later. respectfully request that you grant a rehearing. thank you. >> would you like some time to address the comments that i allowed? >> "right now we are here for a rehearing request. what they have to show a are new facts or circumstances. the fact that the supervisor came up and spoke is a lot of bells and whistles by. the fact that it affected the neighborhood was presented in earlier hearings. he said, because he has new council, that will change circumstances. that is not enough. if they change the council after this rehearing request, and the only thing that they cite as an extraordinary circumstances because of the illicit drugs and the neighborhood, etc., etc.. all of this has been heard previously turned down there must be due process here. the rules are clear. the board has to follow its own rules. there is a california case on this. as they prev

this, like the case prior, both appellants have admitted they have not checked for i.d. in the case prior, we implemented a 15-day suspension. i think of fairness, we should do the same, so i am in favor of the suspension. president goh: i am leaning the other direction in this case, and some of the reason is because it is the house of cigarettes, and that is the business, and i would think with the, one would be even more careful to always check i.d. -- and i would think with that. the mistakes made by the department in the filing papers, that was my only reason for supporting the reduction to 15 days, and so i would so move, pending news things for other commissioners. vice president garcia: would you consider a compromise of 20? president goh? yes. vice president garcia: to be overturned and impose -- would we overturn and impose a new -- deputy city attorney: mr. pacheco, could you call the roll, please? secretary note -- secretary pacheco: on the motion to overturn the department's recommendation and move it to 20 days. [roll call] it is a modified to 20 days. -- it

the council for the appellant. it seems like an odd case for the mta to bring forward for a relocation. something like a fine. prior to 2006. that is a little bit cloudy. certainly, his record since then. i would be opposed to upholding the department depending on the comments of others. commissioner fung: i am in agreement with the department in a sense that it is the responsibility of the medallion holder and the drivers to document their driving records. their licenses are predicate it upon that. excuse me, there permits are predicate on that -- their permits. contrary to what might be stated in the code, both have continuously made reliance upon the record keeping at the color schemes calm -- schemes, and they both make requests to document driving records, so putting the burden on the driver who cannot produce driving records, in this case, when those records, the original bills, which are to be maintained by the color scheme, were removed, so similarly, as the other commissioners said, i have a problem with th

the permit holder indicated it will provide a copy to the board and to the appellant free of card -- charge. president goh: so moved. >> on that motion by the president to designate the transcript of the official record, is there any public comment? i will call the roll. commissioner fung: aye. commissioner garcia: aye. commissioner peterson: aye. commissioner hwang: aye. >> the transcript is designated as the official record. commissioners, at the march 9 hearing, motion was made to grant the rehearing request. the vote at that time was 3-1-1 with garcia dissenting and commissioner peterson absent. we can move right back into deliberation. commissioner peterson, the floor's yours. commissioner peterson: thank you. i had the pleasure of watching the hearing on sfgtv on march 9, 2011, and i appreciate the supervisor coming to this room, as well as members of the public, particularly persuaded by president goh's timeline. in the matter before us, the request for a rehearing, i do think there will be manifest if both sides are not represented. i think it is only just that we provide both

again, these are individuals on behalf of the appellant. if you might have checked the wrong box and want to speak on behalf of the project sponsor, you will be able to do that later on in today's proceedings. sarah mall borah, rose hill some, -- hilsome, lyn aich, judith flynn. >> i am the president of the merchant extension trying to association, located directly across juniper. merced extension triangle office taken a position not opposed to a moderate redevelopment of parkmerced. we are definitely opposed to the height and bulk of the proposed project. what is planned is a development going to 8900 units come up with a projection of 16,020 bedrooms, which equates to a population anywhere between 25,030 thousand residents when completed. i have copies of the state earthquake investigation report from the april 19 earthquake. i want to read briefly from it. an old railroad trestle that crosses the northern end of parkmerced was badly wrecked. the bid was broken into pieces and was out of line at both ends. the direction of the offsets is v

the appellate has also submitted -- the appellant has also submitted examples. however, the examples missed -- miss. therefore, the standards say they cannot be added to the building, so for the past nine years, while the landmark building has fallen into disrepair from a lack of maintenance, the department, the former landmark's board, the hpc has worked together, and we would like to support the conversion to a residential unit. unfortunately, after many years of back and forth, the appellant has not been willing to revise this any further, and they have asked the hpc to review this. we still believe there are opportunities to pursue something viable of this location, but because the appellant will not compromise on a design, we cannot recommend approval of the c of a. they do not believe they meet the standards, visible or not, so the disapproval of the c of a to demolish the building and construct a new building should be upheld. the hpc is composed of experts in preservation, with many on staff of the planning department. we also supported this decision. we