commission. joseph duffy is here. perfect timing. city and building inspector representing building inspection and john is here manager of the public works bureau of street use and mapping. mr. pacheco at this time if you would go over the meeting guidelines and conduct the swear in process. the clerk requires that you turn off all cell phones. appellants have seven 7 minutes for their cases and 3 minutes for rebut amounts people affiliated must include their comments in the three 3 minutes period. members who are not affiliated have up to three 3 minutes to address the board and no rebuttals. to assist the board in the accurate representation of minutes, members of the board are asked but not required to submit a speaker card. speaker cards are available. if you have questions about requesting a rehearing, board rules or hearing schedules, please speak to the staff after the meeting or call the board office tomorrow located on mission street. this meeting is broadcast live on cable channel 78 and dvd's of this meeting are available for purchase directly from sf gov tv. if you intend to testify at any of tonight's hearing and wish to give your testimony evidenceary weight, please raise your hand to be sworn. please note that any member of the public may speak without taking the oath pursuant to the sunshine ordinance and the administrative code. thank you. >> do you solemnly swear ora firm the testimony you are about to give to the the truth, the whole truth and nothing but the truth. >> thank you. we have one item no. 9. item 9: william gould & margaret banda, appellanttss vs. zoning administrator, respondent 260 laussat street. appealing the issuance on march 28, 2014, to jeremy paul / quickdraw permit consulting, letter of determination regarding a request to allow a two-year extension of variance case no. 2010.0588v dated 1/25/11, which granted variances to minimum lot area, rear yard and non-complying structure provisions of the planning codee. for >> thank you. we have one item no. 9. sf 91234 this is a protest of a letter of determination regarding the party. the parties request this matter be rescheduled for june 11, 2014 , to work out an alternate resolution. we do need a motion and a vote in order to do that. >> so moved. >> thank you. is there any public comment on this item? okay. seeing none, mr. pacheco, call the role please. city clerk: we have a motion from commissioner honda to reschedule item no. 9 to june 11th. on that motion, commissioner fung, aye, honda, aye, lazarus, that meeting is rescheduled to june 11. th. >> the next item is item no. 1. this is general public comment. anyone here that wishes to speak on an item that the is not on tonight's calendar. >> good afternoon. my name is paula davis. i was here two 2 years ago on a street artist revokation. i'm sure it's most memorable to most people. i chose not to get that permit right away. i worked on my own without a permit for about a year away from street artist and recently just decided to walk in and pay that permit. it was about three 3 weeks ago because there was a new chair of the street artist program, an older commissioner who had been around for 25 years and i was having hope that things would change there. so i walked in and paid the permit. i went down to justin herman plaza where i had knotted -- not been for two 2 years and that same individual who i don't know threatened me and harassed me. i taped it. he came twice and stayed for an hour and left. i didn't want anything to do with the street artist program because i felt it was too disorganized. they set me work permits. they still don't answer the phone. they are not there during business hours. at the mails they send are very off topic, condescending and rude. in addition the manager is continuing to make 9-1-1 calls or me. 20 squad cars, mug shots. it's a lot of drama that really has no point to it whatsoever. i just wantsd to let you know that most probably i'm coming up again before you because now i have a permit. i'm not doing anything wrong, i never really did. i really wish all that drama would stop. >> thank you. is there anyone else who would like to speak under general public comment? seeing none, we move to commissioners comments and questions. >> commissioners? >> i just want to remind everyone that i will not be in attendance next meeting. >> okay. anything else commissioners? any public comment on this item. >> okay. next consideration of minutes from may 2014. any deletions or corrections? if not, is there a motion to approve the minutes? >> so moved. >> circulate any -- is there any public comment on the minutes? >> mr. pacheco, call the role please. on that motion to adopt the may 14, 2014 minutes, commissioners fung, aye, commissioner hwang, commissioner honda. lazarus. those minutes are adopted. >> okay. thank you. commissioners , the next item on the agenda is a special item having to do with consideration and possible adoption of memorandum of understanding between the port and the board. i spoke with the port today about a possibility of entering a memorandum of understanding so we have an on going relationship for the board to handle appeals of certain types of permits that come through the port specifically entertainment related permits for events and operations located on port property. those permits are issued by the entertainment commission on behalf of the port and under this mou would come to the board before any appeal and be heard for any entertainment commission issued permit. if you would step forward and give us a few minutes to speak. the president's consent. >> good afternoon, commissioners. members of the public. monique moir from the port of san francisco. as you may know there is a section of the charter that is devoted to the port and the ports exclusive right to manage it's properties and from time to time we defer to other departments who have more expertise than we do. several years ago we entered into an agreement with the department of the entertainment commission to help us with our entertainment permits which may affect restaurants, but it may also affect open space and other activities that may occur in the public right-of-way. at that time we did not plan for an appeals process and subsequently we have had appealed and would like to ask your distance in addressing those appeals. it has come to the attention of the port commission that it's a little awkward to approve a lease or license and approving the body at the same time. if you take that into consideration, we would be most grateful. >> miss moir, the permit issued by entertainment are the same as the other permits that they issue? >> so the port issues building permits on its own. >> no, if the entertainment commission is handling the entertainment permits on port property. >> that's correct. >> are those permits any different than the ones they issue for other properties? >> they are not. in fact the entertainment commission has been collecting the board of appeals fee as part of hearing those permits for some period of time. >> their permits are already appealable here. >> yes. >> why would this mou change that? >> because in the charter there is a carve out of the ports exclusive authority to handle those appeals. i don't know why it's in the charter that way, but there is a special provision that reports that back to the ports discretion. >> the entertainment commission is only issuing those permission from the port property because of the authority to them. that would need to delegate their authority to the appeal to us. i think that's the difference in the permits. >> how many permits are we talking about approximately? >> i would say, i don't know, that's a great question. i would say probably maybe a dozen a year. it really, it depends on the activity. as you know the port is often the starting place for a marathon that would go across the city so that would be the type of permit. the one that comes before the entertainment commission relates to restaurants that want to have late night hours. the last one that came before you related to the special event of the america's cup. >> any other questions, commissioners? >> no. >> thank you. >> is there any public comment on this item? >> seeing none, commissioners, it's up to you? discussion, comments? >> i don't see any reason why we should not approve the mou unless our executive director has recommendations to the contrary or additional comments? >> i think this would be helpful to us if an appeal would come up without having the board to entertain whether it wants to hear the appeal before and make the collection for fees for is you are charges so we will be compensated for our services. >> i have a question. historically, at what point in time was this board -- >> 96. >> where it was changed where this board did not have jurisdiction? >> it was 96'. >> okay. >> i will make a motion to approve the mou. >> thank you. mr. pacheco? city clerk: we have a motion from commissioner honda to adopt the memorandum of understanding for the port commission. on that motion, commissioner fung, huang, hurt doeshgs lapis -- lazarus. this item is adopted. >> thank you for coming today. >> then item 5 is our next item up which is two jurisdictions request. item 5: subject property at 56 presidio avenue. letter from brian soriano, attorney for steven minisini, requestor, asking that the board take jurisdiction over electrical permit e2014/02/26/7657 and bpa no. 2014/03/13/0693, which was issued on february 26, 2014 and march 13, 2014, respectively. the appeal periods ended on march 13, 2014 and march 28, 2014 respectively, and both jurisdiction requests were filed at the board office on may 06, 2014. permit holder: steven greenwald & rochelle alpert. project #1: 27 roof mounted solar pv modules, 250 watts per module; 1 interactive inverter, 250w power rating, ttl no. of rating 6.75kw905039, meter main electrical service will also be upgraded/replaced with new. project #2: remove existing roofing down to workable surface; install new 3-ply bur consisting of 1-ply 371 lb. base, 1 layer black diamond and 1-ply g&a mineral cap sheet, request. sf 51234 we can hear from the requester attorney first, mr. soriano. >> good evening, members of the board. i'm brian soriano on behalf of the jurisdiction request. some of you probably recognize me from the numerous appearances made between these same two parts last year . i'm sorry to be back here again. we are not here out of so, you of did -- sour grapes. we are not here for solar panels. it's the manner of installation that we have a problem with and that no explanation has been offered for it and this manner of installation does not obviously appear to maximize the efficiency of solar panels. no explanation for the strange configuration that hasn't been seen been has been given. i would like to put a picture on the overhead. so these are standing almost up right and come almost four 4 feet high well above the wall. without some more technical explanation for the chosen manner of installation, unfortunately one has to consider that spite might have been the motivating factor. we are not the ones that have concern about this. there has been a petition signed by other homeowners in the vicinity. they don't want to take away the right to have solar panels. they just don't understand why they can't lay them on the roof like everybody has. even a slight elevation would be fine. they have them standing up right facing south. it almost appears as the front row would block the amount of light to the second row. this covers the entire span. they were late filing the appeal because when they see roof work for the sooner oner or solar panels. they didn't think people would be able to see these from a street level. this is a planning issue. we are not here to second guess the utility of the solar system. we are fans of it. we know the city is fans of solar systems and if everybody can do it, they should put them up. we want other eyes from the city's planning department. the reeb -- reason this appeal wasn't filed is we never thought this would be the case. when we realized there were other members of the neighborhood that have similar concerns we made jurisdictional request. within 24 hours the permit holders filed a lawsuit in superior court. the good news is this dispute is going to move on to a different form. the reason we are here tonight is to simply ask the city to take a look for the benefit of anybody in this neighborhood as to why a less intrusive manner of installation can be done to pretend a safety risk and high winds and interfere from numerous properties unnecessarily and perhaps for a wrongful motivation. i will submit it on that unless you have questions. >> thank you. >> good afternoon, members of the commission. first comment, none of what mr. soriano said here tonight was listed in his letter to you asking you to take jurisdiction. had he raised the issue of the manner of installation, i could have submitted to you something from the contract or who would have told you i installed it to maximize the solar capacity. there is not to spite about it. my clients hired a contract or, got the right permit, the contract or got the solar panels to do what it's there to do which is to generate electricity which is what they are doing now. if you look at the photograph that mr. soriano did submit to you, it shows you that these are not obtrusive panels. the photograph is taking from the roof deck next door. you can't see these panels from the street. you can't see these panels from a living space. they are on the roof. they don't interfere of this view with the golden gate bridge. they are just solar panels installed the right way. that is getting one step beyond the question before you tonight and that is whether the city did something to inadvertently or intentionally mislead the requesters so they couldn't file timely appeals. in fact as you have seen, they knew about these permits. they in fact, mr. soriano sent me a letter saying that they are going to take the high road and not appeal these permits that the parties have going on with each other. they could have filed an appeal in a timely basis. they didn't do so. but one point i want to make out about that appeal if they had done it on a timely basis, these solar panels are favored by city and state law. state law states localities should only look at public health and safety concerns if they are evaluating whether to issue these permits. aesthetic concerns or the concerns of mr. soriano expressed in this letter about view, the state has said those shouldn't be considerations for solar panels because the policy is to incur installation. i don't want to take anymore of your time. the point is there is no good faith basis for this jurisdiction request. even if there were, there would be no basis for the appeal. to do something the state and law encourages my clients to do. unless you have any questions. >> can you address the safety issue that mr. soriano raised in his brief? >> i know of no safety issue. he raised an issue tonight about, i guess he's concerned they might get carried away by the wind. my clients own this home. they have a responsibility for the solar panels. they hired reputable contractors to install them appropriately. >> i'm trying to understand the way that i have seen them and i don't know much about panels, solar panels. the way i have seen them their installed flat. is there a reason why they are installed the way they are? >> to maximize their exposure to the sun based on the angle of the house and the trajectory of the sun. they are installed to maximize their generation power. >> thank you. >> mr. honda? i have seen them. i have a question about the installation as well. they are bolted to the roof, right? do you have your contract or here? >> yes. >> and times where i have seen them angled is when the roof is flat or even somewhat on an angled roof. but, because we don't have information about something that was raised today on the papers on the angle and the installation method, is there, the contract or, do you know the name of the contract or that was used? is it a contractor in san francisco? >> yes. >> okay. i don't have anything further. >> thank you. mr. sanchez? >> thank you, good evening, president lapis lazarus, members of the board. it's been raised this is a planning issue. it is not a planning issue. section code split explicitly exempt it and a zone manner of height restrictions well. in terms of reviewing this as a planning issue, i believe this is not a planning issue. there is no notification required under the planning code. in regard to the angle of the panels. the planning department and the city as a whole did not regulate that. the angle of the panel would be directly relative to the efficiency of the panels and that would vary over the course of the year. in the summer it would be positioned flatter when the sun is high in the sky and the winter it's higher up, more vertical. when the sun is lower in the sky, i think a general recommendation in san francisco in general is that you can use your angle would be equal to the latitude. san francisco is a little bit shy of 58 degrees and it would be 38 degrees for a fixed panels and there is different schools of thought on that and there seems to be some plus minus of 15 degrees. we would assume these panels are installed to maximize efficiency and not detract from or cause any spite full issues with neighbors. again, that would be our assumption. thank you. that would be self facing too as well because the sun. >> mr. duffy? >> good evening, commissioners. the solar panels were permitted on an electrical permit issued by dbi. they were issued through electronic class c 10. the contractor looks to be licensed. the description of the work appears to be within what we would normally see for solar panels. i did speak with chief director of installer panels. he looked at the photographs that were in the brief, he looked at the permit, the work was actually inspected and completed. it looked like a typical installation. i asked about the angle of the solar panels. he says they are normally about 37-38 degrees. from a dbi point of view we don't see anything strange or complicated about the installation. the structural question i came up with earlier, that would be on the plans of how they would be bolted and designed to obviously for wind load and stuff like that. we would check that. it's actually plan checked by our electrical inspection as well. these installations has more stream lined over the year for the process of this. we know the directors inspected this and electrical they are looking for the electrical connections and structural connections. i'm available for any questions. thank you. >> thank you, is there any public comment on this item? okay. seeing none, commissioners, these matters are submitted. >> it's not related to our process. >> [inaudible] >> i said no to that. >> okay. i'm going to, on the jurisdiction because this is a jurisdiction request, we did hear some testimony on the merits, but i don't believe the standard is met for purposes of the late filing. we did hear evidence of and we saw in the briefs evidence of the knowledge of the timeliness issue and didn't hear any, receive any evidence suggesting it was the fault of the city for the failing on the part of requester to get the request on time and appeal on time. i'm inclined to make a motion to deny the request. >> comment? >> no. >> i will make the motion. >> okay, mr. pacheco, if you could call the roll, please. city clerk: we have a motion from commissioner huang to deny both jurisdiction request. on that motion, commissioner fung, aye, vice-president hurtado, aye, president lazarus, commissioner honda, aye. the vote is 5-0. both are denied and noah peels maybe filed. >> item 6. item 6: subject property at 2051 3rd street aka 650 illinois street. letter from stephen williams, attorney for christopher delaney et al., appellants, requesting rehearing of appeal no. 14-058, delaney et al. vs. dpw buf, decided may 07, 2014. at that time, upon motion by commissioner hwang, the board voted 3-1-1 commissioner fung dissented and vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after a site permit has been issued for the construction project proposed for this site; and 22 that the replacement trees be at least of a 48" box size and if possible of a 60" box size. lacking the four votes needed to pass, the motion failed. upon further motion by commissioner hwang the board voted 4-0-1 vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after the june 5, 2014 hearing before the planning commission on the large project authorization for the construction project proposed for this site; and 22 that the replacement trees be at least of a 48" box size and if possible of a 60" box size. permit holder: richard price. project: approval to remove six 66 existing trees and plant nine 99 >> item >> we will start with the requester. >> good afternoon, commissioners, you know who
the meeting of the san francisco board of appeals. we are joined by commissioner hurtado, commissioner frank fung, honda and chris function. to my left is robert brian and will provide the board with any legal advice tonight and mr. pacheco the assistant and i'm cynthia goldstein, the executive director. we are joined by the city department sthav cases before the board. scott sanchez is here, he's the zoning administrator and representing the planning department and planning commission. joseph duffy is here. perfect timing. city and building inspector representing building inspection and john is here manager of the public works bureau of street use and mapping. mr. pacheco at this time if you would go over the meeting guidelines and conduct the swear in process. the clerk requires that you turn off all cell phones. appellants have seven 7 minutes for their cases and 3 minutes for rebut amounts people affiliated must include their comments in the three 3 minutes period. members who are not affiliated have up to three 3 minutes to address the board and no rebuttals. to assist the board in the accurate representation of minutes, members of the board are asked but not required to submit a speaker card. speaker cards are available. if you have questions about requesting a rehearing, board rules or hearing schedules, please speak to the staff after the meeting or call the board office tomorrow located on mission street. this meeting is broadcast live on cable channel 78 and dvd's of this meeting are available for purchase directly from sf gov tv. if you intend to testify at any of tonight's hearing and wish to give your testimony evidenceary weight, please raise your hand to be sworn. please note that any member of the public may speak without taking the oath pursuant to the sunshine ordinance and the administrative code. thank you. >> do you solemnly swear ora firm the testimony you are about to give to the the truth, the whole truth and nothing but the truth. >> thank you. we have one item no. 9. item 9: william gould & margaret banda, appellanttss vs. zoning administrator, respondent 260 laussat street. appealing the issuance on march 28, 2014, to jeremy paul / quickdraw permit consulting, letter of determination regarding a request to allow a two-year extension of variance case no. 2010.0588v dated 1/25/11, which granted variances to minimum lot area, rear yard and non-complying structure provisions of the planning codee. for >> thank you. we have one item no. 9. sf 91234 this is a protest of a letter of determination regarding the party. the parties request this matter be rescheduled for june 11, 2014 , to work out an alternate resolution. we do need a motion and a vote in order to do that. >> so moved. >> thank you. is there any public comment on this item? okay. seeing none, mr. pacheco, call the role please. city clerk: we have a motion from commissioner honda to reschedule item no. 9 to june 11th. on that motion, commissioner fung, aye, honda, aye, lazarus, that meeting is rescheduled to june 11. th. >> the next item is item no. 1. this is general public comment. anyone here that wishes to speak on an item that the is not on tonight's calendar. >> good afternoon. my name is paula davis. i was here two 2 years ago on a street artist revokation. i'm sure it's most memorable to most people. i chose not to get that permit right away. i worked on my own without a permit for about a year away from street artist and recently just decided to walk in and pay that permit. it was about three 3 weeks ago because there was a new chair of the street artist program, an older commissioner who had been around for 25 years and i was having hope that things would change there. so i walked in and paid the permit. i went down to justin herman plaza where i had knotted -- not been for two 2 years and that same individual who i don't know threatened me and harassed me. i taped it. he came twice and stayed for an hour and left. i didn't want anything to do with the street artist program because i felt it was too disorganized. they set me work permits. they still don't answer the phone. they are not there during business hours. at the mails they send are very off topic, condescending and rude. in addition the manager is continuing to make 9-1-1 calls or me. 20 squad cars, mug shots. it's a lot of drama that really has no point to it whatsoever. i just wantsd to let you know that most probably i'm coming up again before you because now i have a permit. i'm not doing anything wrong, i never really did. i really wish all that drama would stop. >> thank you. is there anyone else who would like to speak under general public comment? seeing none, we move to commissioners comments and questions. >> commissioners? >> i just want to remind everyone that i will not be in attendance next meeting. >> okay. anything else commissioners? any public comment on this item. >> okay. next consideration of minutes from may 2014. any deletions or corrections? if not, is there a motion to approve the minutes? >> so moved. >> circulate any -- is there any public comment on the minutes? >> mr. pacheco, call the role please. on that motion to adopt the may 14, 2014 minutes, commissioners fung, aye, commissioner hwang, commissioner honda. lazarus. those minutes are adopted. >> okay. thank you. commissioners , the next item on the agenda is a special item having to do with consideration and possible adoption of memorandum of understanding between the port and the board. i spoke with the port today about a possibility of entering a memorandum of understanding so we have an on going relationship for the board to handle appeals of certain types of permits that come through the port specifically entertainment related permits for events and operations located on port property. those permits are issued by the entertainment commission on behalf of the port and under this mou would come to the board before any appeal and be heard for any entertainment commission issued permit. if you would step forward and give us a few minutes to speak. the president's consent. >> good afternoon, commissioners. members of the public. monique moir from the port of san francisco. as you may know there is a section of the charter that is devoted to the port and the ports exclusive right to manage it's properties and from time to time we defer to other departments who have more expertise than we do. several years ago we entered into an agreement with the department of the entertainment commission to help us with our entertainment permits which may affect restaurants, but it may also affect open space and other activities that may occur in the public right-of-way. at that time we did not plan for an appeals process and subsequently we have had appealed and would like to ask your distance in addressing those appeals. it has come to the attention of the port commission that it's a little awkward to approve a lease or license and approving the body at the same time. if you take that into consideration, we would be most grateful. >> miss moir, the permit issued by entertainment are the same as the other permits that they issue? >> so the port issues building permits on its own. >> no, if the entertainment commission is handling the entertainment permits on port property. >> that's correct. >> are those permits any different than the ones they issue for other properties? >> they are not. in fact the entertainment commission has been collecting the board of appeals fee as part of hearing those permits for some period of time. >> their permits are already appealable here. >> yes. >> why would this mou change that? >> because in the charter there is a carve out of the ports exclusive authority to handle those appeals. i don't know why it's in the charter that way, but there is a special provision that reports that back to the ports discretion. >> the entertainment commission is only issuing those permission from the port property because of the authority to them. that would need to delegate their authority to the appeal to us. i think that's the difference in the permits. >> how many permits are we talking about approximately? >> i would say, i don't know, that's a great question. i would say probably maybe a dozen a year. it really, it depends on the activity. as you know the port is often the starting place for a marathon that would go across the city so that would be the type of permit. the one that comes before the entertainment commission relates to restaurants that want to have late night hours. the last one that came before you related to the special event of the america's cup. >> any other questions, commissioners? >> no. >> thank you. >> is there any public comment on this item? >> seeing none, commissioners, it's up to you? discussion, comments? >> i don't see any reason why we should not approve the mou unless our executive director has recommendations to the contrary or additional comments? >> i think this would be helpful to us if an appeal would come up without having the board to entertain whether it wants to hear the appeal before and make the collection for fees for is you are charges so we will be compensated for our services. >> i have a question. historically, at what point in time was this board -- >> 96. >> where it was changed where this board did not have jurisdiction? >> it was 96'. >> okay. >> i will make a motion to approve the mou. >> thank you. mr. pacheco? city clerk: we have a motion from commissioner honda to adopt the memorandum of understanding for the port commission. on that motion, commissioner fung, huang, hurt doeshgs lapis -- lazarus. this item is adopted. >> thank you for coming today. >> then item 5 is our next item up which is two jurisdictions request. item 5: subject property at 56 presidio avenue. letter from brian soriano, attorney for steven minisini, requestor, asking that the board take jurisdiction over electrical permit e2014/02/26/7657 and bpa no. 2014/03/13/0693, which was issued on february 26, 2014 and march 13, 2014, respectively. the appeal periods ended on march 13, 2014 and march 28, 2014 respectively, and both jurisdiction requests were filed at the board office on may 06, 2014. permit holder: steven greenwald & rochelle alpert. project #1: 27 roof mounted solar pv modules, 250 watts per module; 1 interactive inverter, 250w power rating, ttl no. of rating 6.75kw905039, meter main electrical service will also be upgraded/replaced with new. project #2: remove existing roofing down to workable surface; install new 3-ply bur consisting of 1-ply 371 lb. base, 1 layer black diamond and 1-ply g&a mineral cap sheet, request. sf 51234 we can hear from the requester attorney first, mr. soriano. >> good evening, members of the board. i'm brian soriano on behalf of the jurisdiction request. some of you probably recognize me from the numerous appearances made between these same two parts last year . i'm sorry to be back here again. we are not here out of so, you of did -- sour grapes. we are not here for solar panels. it's the manner of installation that we have a problem with and that no explanation has been offered for it and this manner of installation does not obviously appear to maximize the efficiency of solar panels. no explanation for the strange configuration that hasn't been seen been has been given. i would like to put a picture on the overhead. so these are standing almost up right and come almost four 4 feet high well above the wall. without some more technical explanation for the chosen manner of installation, unfortunately one has to consider that spite might have been the motivating factor. we are not the ones that have concern about this. there has been a petition signed by other homeowners in the vicinity. they don't want to take away the right to have solar panels. they just don't understand why they can't lay them on the roof like everybody has. even a slight elevation would be fine. they have them standing up right facing south. it almost appears as the front row would block the amount of light to the second row. this covers the entire span. they were late filing the appeal because when they see roof work for the sooner oner or solar panels. they didn't think people would be able to see these from a street level. this is a planning issue. we are not here to second guess the utility of the solar system. we are fans of it. we know the city is fans of solar systems and if everybody can do it, they should put them up. we want other eyes from the city's planning department. the reeb -- reason this appeal wasn't filed is we never thought this would be the case. when we realized there were other members of the neighborhood that have similar concerns we made jurisdictional request. within 24 hours the permit holders filed a lawsuit in superior court. the good news is this dispute is going to move on to a different form. the reason we are here tonight is to simply ask the city to take a look for the benefit of anybody in this neighborhood as to why a less intrusive manner of installation can be done to pretend a safety risk and high winds and interfere from numerous properties unnecessarily and perhaps for a wrongful motivation. i will submit it on that unless you have questions. >> thank you. >> good afternoon, members of the commission. first comment, none of what mr. soriano said here tonight was listed in his letter to you asking you to take jurisdiction. had he raised the issue of the manner of installation, i could have submitted to you something from the contract or who would have told you i installed it to maximize the solar capacity. there is not to spite about it. my clients hired a contract or, got the right permit, the contract or got the solar panels to do what it's there to do which is to generate electricity which is what they are doing now. if you look at the photograph that mr. soriano did submit to you, it shows you that these are not obtrusive panels. the photograph is taking from the roof deck next door. you can't see these panels from the street. you can't see these panels from a living space. they are on the roof. they don't interfere of this view with the golden gate bridge. they are just solar panels installed the right way. that is getting one step beyond the question before you tonight and that is whether the city did something to inadvertently or intentionally mislead the requesters so they couldn't file timely appeals. in fact as you have seen, they knew about these permits. they in fact, mr. soriano sent me a letter saying that they are going to take the high road and not appeal these permits that the parties have going on with each other. they could have filed an appeal in a timely basis. they didn't do so. but one point i want to make out about that appeal if they had done it on a timely basis, these solar panels are favored by city and state law. state law states localities should only look at public health and safety concerns if they are evaluating whether to issue these permits. aesthetic concerns or the concerns of mr. soriano expressed in this letter about view, the state has said those shouldn't be considerations for solar panels because the policy is to incur installation. i don't want to take anymore of your time. the point is there is no good faith basis for this jurisdiction request. even if there were, there would be no basis for the appeal. to do something the state and law encourages my clients to do. unless you have any questions. >> can you address the safety issue that mr. soriano raised in his brief? >> i know of no safety issue. he raised an issue tonight about, i guess he's concerned they might get carried away by the wind. my clients own this home. they have a responsibility for the solar panels. they hired reputable contractors to install them appropriately. >> i'm trying to understand the way that i have seen them and i don't know much about panels, solar panels. the way i have seen them their installed flat. is there a reason why they are installed the way they are? >> to maximize their exposure to the sun based on the angle of the house and the trajectory of the sun. they are installed to maximize their generation power. >> thank you. >> mr. honda? i have seen them. i have a question about the installation as well. they are bolted to the roof, right? do you have your contract or here? >> yes. >> and times where i have seen them angled is when the roof is flat or even somewhat on an angled roof. but, because we don't have information about something that was raised today on the papers on the angle and the installation method, is there, the contract or, do you know the name of the contract or that was used? is it a contractor in san francisco? >> yes. >> okay. i don't have anything further. >> thank you. mr. sanchez? >> thank you, good evening, president lapis lazarus, members of the board. it's been raised this is a planning issue. it is not a planning issue. section code split explicitly exempt it and a zone manner of height restrictions well. in terms of reviewing this as a planning issue, i believe this is not a planning issue. there is no notification required under the planning code. in regard to the angle of the panels. the planning department and the city as a whole did not regulate that. the angle of the panel would be directly relative to the efficiency of the panels and that would vary over the course of the year. in the summer it would be positioned flatter when the sun is high in the sky and the winter it's higher up, more vertical. when the sun is lower in the sky, i think a general recommendation in san francisco in general is that you can use your angle would be equal to the latitude. san francisco is a little bit shy of 58 degrees and it would be 38 degrees for a fixed panels and there is different schools of thought on that and there seems to be some plus minus of 15 degrees. we would assume these panels are installed to maximize efficiency and not detract from or cause any spite full issues with neighbors. again, that would be our assumption. thank you. that would be self facing too as well because the sun. >> mr. duffy? >> good evening, commissioners. the solar panels were permitted on an electrical permit issued by dbi. they were issued through electronic class c 10. the contractor looks to be licensed. the description of the work appears to be within what we would normally see for solar panels. i did speak with chief director of installer panels. he looked at the photographs that were in the brief, he looked at the permit, the work was actually inspected and completed. it looked like a typical installation. i asked about the angle of the solar panels. he says they are normally about 37-38 degrees. from a dbi point of view we don't see anything strange or complicated about the installation. the structural question i came up with earlier, that would be on the plans of how they would be bolted and designed to obviously for wind load and stuff like that. we would check that. it's actually plan checked by our electrical inspection as well. these installations has more stream lined over the year for the process of this. we know the directors inspected this and electrical they are looking for the electrical connections and structural connections. i'm available for any questions. thank you. >> thank you, is there any public comment on this item? okay. seeing none, commissioners, these matters are submitted. >> it's not related to our process. >> [inaudible] >> i said no to that. >> okay. i'm going to, on the jurisdiction because this is a jurisdiction request, we did hear some testimony on the merits, but i don't believe the standard is met for purposes of the late filing. we did hear evidence of and we saw in the briefs evidence of the knowledge of the timeliness issue and didn't hear any, receive any evidence suggesting it was the fault of the city for the failing on the part of requester to get the request on time and appeal on time. i'm inclined to make a motion to deny the request. >> comment? >> no. >> i will make the motion. >> okay, mr. pacheco, if you could call the roll, please. city clerk: we have a motion from commissioner huang to deny both jurisdiction request. on that motion, commissioner fung, aye, vice-president hurtado, aye, president lazarus, commissioner honda, aye. the vote is 5-0. both are denied and noah peels maybe filed. >> item 6. item 6: subject property at 2051 3rd street aka 650 illinois street. letter from stephen williams, attorney for christopher delaney et al., appellants, requesting rehearing of appeal no. 14-058, delaney et al. vs. dpw buf, decided may 07, 2014. at that time, upon motion by commissioner hwang, the board voted 3-1-1 commissioner fung dissented and vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after a site permit has been issued for the construction project proposed for this site; and 22 that the replacement trees be at least of a 48" box size and if possible of a 60" box size. lacking the four votes needed to pass, the motion failed. upon further motion by commissioner hwang the board voted 4-0-1 vice president hurtado absentt to grant the appeal and uphold the permit on the basis that the trees are large and present some safety concerns, and on the condition that 11 the trees not be removed until after the june 5, 2014 hearing before the planning commission on the large project authorization for the construction project proposed for this site; and
>> >> good evening, welcome to the july 10, 2013 meeting of the san francisco board of appeals. the preceding officer this evening is board president, chris hwang and she is joined by lazarus and commissioner fung and honda and hurtado. >> and to high left is robert brian and he will provide the board with any needed legal advice at this evening, and at the control is the assistant. >> and also joined tonight by representatives of the city departments who have cases before the board in the front row is scott sanchez, he is a zoning administrator and representing the planning department and commission, and we are also joined by senior building inspect or and john kwo ng, the bureau of street use and mapping. >> if you could go over the meeting guidelines and conduct the swearing in process. >> the board requests that you turn off all phones and pagers that they will not go off. and the boards rules of presentation are as follows, appellants and permit holders have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments in the 7 or 3-minute periods, the members of the public who are not affiliated with the parties have up to three minutes each to address the board but no rebuttals, to assist the board in accurate preparation of the minutes, the members of the public who like to speak on an item are asked but not required to submit a card when you come up.. speaker cards and men's are available on the left side. they also welcome your comments and questions and there are customer forms on the left side. if you have a request for a board rehearing, speak to the staff during the break or after a meeting or call the office tomorrow morning, it is located at 1650 mission street and room 304. this meeting is broadcast live on san francisco government television, sfgov tv cable channel 78 and dvds of this meeting are available for purchase directly from sfgov tv and thank you for your attention and at this point in time we will conduct your swearing in process, if you wish to give your testimony and wish to have your evidence give weight, stand up and say i do. any member of the public may speak without taking this oath pursuant to the rights under the sunshine ordinance in the administrative code thank you. >> thank you. we will call item number one, which is public comment for items that are not on tonight's calendar. is there anyone who wishes to speak under this item? >> we can't hear you. >> these are some of the things that i made. >> do you want to identify yourself for the record? >> my name is paula davis. >> do you want me to stop the clock or are you going to say anything else? >> is there any other member of the public that would like to speak under this item? >> okay, seeing none we will move on to item number two which is commissioner comments and questions, anything? >> nothing, okay. >> actually, do we need to inform the public or is this noticed when commissioners are not going to be here? >> we can make that announcement if you wish. >> our calendars are not listed on the website? >> no. >> i will not be here at the july 31 meeting. >> okay. is there any public comment on this item? >> seeing none we will move to item three which is the adoption of the minutes, commissioners for your consideration this evening, on the board's members of the june 19, 2013 meeting. any changes? >> no. >> i will move to adopt the minutes. >> is there any public comment on the minutes? >> seeing none, would you please call the roll? >> on that motion from the president, to adopt the june 19th, 2013 minutes, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, those minutes are adopted. >> thank you. with the president's consent we are going to call item number 6 out of order because we understand that they have reached a settlement this is 13.059. this project is at 2366, 33rd avenue, protesting the issuance on may 6, 2013 to peter sun of a permit to alter a building, two new wagt rooms and one bedroom and storage room and tool room and laundry area to be constructed at ground floor per plan, enclose new bedroom, below sun room and ground floor remodel kitchen and 2 bathrooms and if the parties would like to come forward jointly, you can present the settlement that you reached. >> good evening, board members. my name is peter, and the last name is sun. receding at 2366, 33rd avenue. and so i am happy to report that we have reached a settlement with our neighbor and briefly, if i may read the set of settlement letter. >> please? >> okay. so there are four items on this settlement letter. number one, the light wall in question on the second floor has increased to 2 foot and 6 inches. this change from the original proposed step of 1 foot and 6 inches, this will allow a total separation of four foot and six inches between neighboring walls. second item, there will be no set back. light wall on the ground floor. third item, a new window of approximately 4 foot by three foot will be added to the kitchen within the light wall. number four, final height of parapit wall and at light wall shall be maintained to allow maximum light to the neighboring windows. so, it is signed and dated today. >> did you also have revised plans? >> yes, i do. >> okay. >> this one. >> all right. >> okay, have they been reviewed by planning? >> thank you, scott sanchez, the department will not oppose the plans? >> could we hear from the appellant as well? >> miss gonzalez? we want to make sure that you are in agreement with this? >> my husband and we are agree about the proposal. >> okay. >> we understand that you want to keep an eye and see if he is going to complain? >> i can't hear you at all. >> in the meantime we want to keep an eye on the construction and see if everything goes well. otherwise we have to do it again, so we will see how it goes. >> thank you. >> everything is fine with us. so we agreed of what he proposed. >> okay. >> thank you. >> is there any public comment? >> seeing none, mr. did duffy is there anything that you want to say? >> i have one comment to the department of representatives. >> good evening, is this going to be done under a special condition's permit? >> okay, that is all. >> okay. commissioners the matter is submitted. >> i have just a short comment and perhaps recommendation to the departmental representatives, and when i looked at the packet and the drawing that was... and it is not one that provides all of the information that is required. and it does not show adjoining conditions and so it was very difficult to review the case of it. and if you see that, rather than having us bring that up, and requesting the additional information, perhaps you can recommend it to the appellants or the permit holders, so that they can supplement their submital. >> any other comments? >> i am going to move that grantee appeal and approve the permit on the conditions and the revised drawings that have been presented. thank you. >> could you call the roll on that please? >> we have a motion from commissioner fung? to up hold this permit with the conditions and revised plans. and the letters dated 7-8 and the plans are dated 7-3. and on that motion, to up hold the permit with these revised plans, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> and commissioner honda. >> aye. >> the vote is 5-0 and the permit is up hold with these revised plans and conditions, thank you. >> thank you. so we can go back then to item 4 a a jurisdiction request, 865 market street, the board received a letter from mary murphy asking that the board take jurisdiction over the mobile food facility permit november 11 fmm-0061 which was issued on july 17, 2012, the 15-day appeal period expired on august 1, 2012 and the jurisdiction request was filed with the board's office on may 13, 2013, permit holder is kettle corn star, the project is the sale of kettle corn of funnel cakes and waffles and lemonade. >> we can start with the requestor. >> good afternoon, mary murphy and the county of the appellant, we are here today to respectfully request that this commission accept jurisdiction over the appeal of the renewal and by dpw to kettle corn star the respond ant. as set forth in the papers before you, they did not receive notice of the intent to issue the permit and only became aware of the permit after kettle corn commenced operations, the request was rejected who asked to put it to this board. when they filed an appeal it was also rejected. we are now before you requesting that you accept jurisdiction because we believe that this matter meets the standards established by section 10 of your board rules that the board may accept jurisdiction in the cases where the board finds that the city intentionally caused the requestor in being late in filing an appeal. the distribution lists demonstrates that the city failed to provide the requisite notice. and in making this request, we understand that this is a difficult situation, both west field and kettle corn have been diligent and have acted in good faith. for the reasons that we do not understand, west field did not receive notice of the permit application, this apparent error is at odds with the experience with the mobile food program because west field has received timely notices of other similar applications to dpw, as a consequence of this error, west field was denied due process, it consists of notice and an opportunity to it be heard and west field has been denied both. and notwithstanding that both parties have been diligent and as between the two, they have received the benefit of this and have been able to obtain the permit and to operate as it was unable to raise the concerns about the permit. kettle corn notes that some of the tenants did receive notice and that observation under scores the reasons for this request, the tenants would expect the landlord to undertake to protect the request and the investment in the neighborhood, the food program intended to revitalize the neighborhoods, however the area in front of the center is already extremely busy and vital not because of the hundreds of millions of dollars that they invested to build the center but because of the tenants that pay rent there and invest as a result. >> we submit that the situation meets your standards for accepting review and we hope that you will do so. thank you for your time and attention to this matter. >> miss murphy, i have a question, when did west field become aware of operations? >> i believe, i have not yet... from west field nicole is with me here today and i believe that it was after you noticed that they were there operating before or in front of the entrance to the west field center, do you want to speak to that issue. >> nicole with west field. we noticed when they first opened for business. >> when was that? >> i am looking for a date. >> that is the most exact date that you can give me? >> 2012 was last summer. >> is there a reason why there was not an appeal filed before now? >> and we or our office contacted dpw and we were told that the permit would be subject to renewal and the way that they do is has a new permit number and so we had the communication with the dpw advance of the renewal of the permit and then we were under the impression that we were supposed to wait for the approval. so that when the renewal was issued in a timely fashion filed the appeal of the renewal of the permit. but dpw said that the renewal was properly appealable to them and only heard the appeals of the initial grant and so they instructed us to the appeal of this board, when we filed it was rejected as not this being in your subject matter jurisdiction and it is a bit of a frustrating prospect as you can imagine and we are very aware of the fact that kettle corn has tried to play by the rules as well. everyone has pursued avenue and kettle corn about everything that they can, and this was not an error for west field or kettle corn, for some reason west field was not on the list and did not receive this notice, but the point of this story is that west field has never been afforded an opportunity to be heard on this matter, neither on the original permit and sent around in a circle with respect to the renewal of the permit. >> and this is my last question, is, or you mentioned that you have gotten notice about the other permits in the past. >> yes. and i guess what i am trying to get at is why you would be noticed as west field given that you are not a restaurant or a similar establishment as kettle corn? maybe that is the reason? but you said that you have gotten notices? the past. >> yes. >> the promissions are the 300 foot radius that you are familiar with and it is curious because the map of the 300 foot radius was from the wrong location and actually notwithstanding that, we actually would still be within 300 foot radius and the businesses are to be noticed whether they are a direct come pet or or not. and there were other tenants noticed i think as kettle corn has correctly noted in the papers and again we are completely conscious of the fact that this was not their fault they tried to do it by the book and it was a strange circumstance that we would get in the other situations through the people using some sort of radius map service, but not in this instance. >> but if other people were noticed and other businesses presumably within west field, what is the harm to west field, then? if those businesses have the opportunity to appeal or raise the concerns? >> west field is the landlord of a very major enterprise and i would believe that most are managed by someone who is just there working at the facility and would not necessarily think it was appropriate for them to be dealing with any sort of official notice from the city. i think that most people would expect that is something that the landlord would attend to if there is an official notice. i have not interviewed all of the tenants and i cannot speak to that, i would imagine that would be the case most people are busy running their businesses and west field's interests in protecting their interest in protecting their tenants who are there. and they are people who have been, you know, making an investment and paying rent and you know, have invested in their businesses at that location. and west field has invested in that location by building that center there and as a consequence, i think that is why the rules were set up to afford the business owners and the tenants in those businesses, the opportunity to be heard of. and the point of this story is that opportunity was not afforded to the landlord and it is a million foot enterprise, and it has another half a million feet at the nordstrom's side of it which it operates as part of the center under the school district and you know it is just, a very odd circumstance that they did not receive this notice. >> where should the notice have been given, 865 market street which is the notice and the front door. but the map the radius starts across the street. it is not an important point, it happened to include. >> who at west field did not get the notice? >> the physical location is on the fifth floor of the nordstrom side is 865 market street box a, is the mailing address. >> important to note. >> i want to know specifically you are claiming should have been. >> it should have been dropped in box a? >> correct. >> and it was
comments of this discussion and we have a in terms of 4 names. to the flu board on july 23rd and colleagues we'll take that >> any public comment on that. >> i think we can. >> actually, the motion was adopted in closed session and so we will take our comments on say closed session and we'll close public comment and so, now going to item number 4. >> this is an information item. >> so we're going to public comment for item 4 and seeing none, none we'll close. >> and in the general public comment it's closed and will now be closed due to no one coming forward. >> we seek adjournment. >> colleagues we're adjourned. >> >> >> good evening, welcome to the july 10, 2013 meeting of the san francisco board of appeals. the preceding officer this evening is board president, chris hwang and she is joined by lazarus and commissioner fung and honda and hurtado. >> and to high left is robert brian and he will provide the board with any needed legal advice at this evening, and at the control is the assistant. >> and also joined tonight by representatives of the city departments who have cases before the board in the front row is scott sanchez, he is a zoning administrator and representing the planning department and commission, and we are also joined by senior building inspect or and john kwo ng, the bureau of street use and mapping. >> if you could go over the meeting guidelines and conduct the swearing in process. >> the board requests that you turn off all phones and pagers that they will not go off. and the boards rules of presentation are as follows, appellants and permit holders have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments in the 7 or 3-minute periods, the members of the public who are not affiliated with the parties have up to three minutes each to address the board but no rebuttals, to assist the board in accurate preparation of the minutes, the members of the public who like to speak on an item are asked but not required to submit a card when you come up.. speaker cards and men's are available on the left side. they also welcome your comments and questions and there are customer forms on the left side. if you have a request for a board rehearing, speak to the staff during the break or after a meeting or call the office tomorrow morning, it is located at 1650 mission street and room 304. this meeting is broadcast live on san francisco government television, sfgov tv cable channel 78 and dvds of this meeting are available for purchase directly from sfgov tv and thank you for your attention and at this point in time we will conduct your swearing in process, if you wish to give your testimony and wish to have your evidence give weight, stand up and say i do. any member of the public may speak without taking this oath pursuant to the rights under the sunshine ordinance in the administrative code thank you. >> thank you. we will call item number one, which is public comment for items that are not on tonight's calendar. is there anyone who wishes to speak under this item? >> we can't hear you. >> these are some of the things that i made. >> do you want to identify yourself for the record? >> my name is paula davis. >> do you want me to stop the clock or are you going to say anything else? >> is there any other member of the public that would like to speak under this item? >> okay, seeing none we will move on to item number two which is commissioner comments and questions, anything? >> nothing, okay. >> actually, do we need to inform the public or is this noticed when commissioners are not going to be here? >> we can make that announcement if you wish. >> our calendars are not listed on the website? >> no. >> i will not be here at the july 31 meeting. >> okay. is there any public comment on this item? >> seeing none we will move to item three which is the adoption of the minutes, commissioners for your consideration this evening, on the board's members of the june 19, 2013 meeting. any changes? >> no. >> i will move to adopt the minutes. >> is there any public comment on the minutes? >> seeing none, would you please call the roll? >> on that motion from the president, to adopt the june 19th, 2013 minutes, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, those minutes are adopted. >> thank you. with the president's consent we are going to call item number 6 out of order because we understand that they have reached a settlement this is 13.059. this project is at 2366, 33rd avenue, protesting the issuance on may 6, 2013 to peter sun of a permit to alter a building, two new wagt rooms and one bedroom and storage room and tool room and laundry area to be constructed at ground floor per plan, enclose new bedroom, below sun room and ground floor remodel kitchen and 2 bathrooms and if the parties would like to come forward jointly, you can present the settlement that you reached. >> good evening, board members. my name is peter, and the last name is sun. receding at 2366, 33rd avenue. and so i am happy to report that we have reached a settlement with our neighbor and briefly, if i may read the set of settlement letter. >> please? >> okay. so there are four items on this settlement letter. number one, the light wall in question on the second floor has increased to 2 foot and 6 inches. this change from the original proposed step of 1 foot and 6 inches, this will allow a total separation of four foot and six inches between neighboring walls. second item, there will be no set back. light wall on the groundfloor. third item, a new window of approximately 4 foot by three foot will be added to the kitchen within the light wall. number four, final height of parapit wall and at light wall shall be maintained to allow maximum light to the neighboring windows. so, it is signed and dated today. >> did you also have revised plans? >> yes, i do. >> okay. >> this one. >> all right. >> okay, have they been reviewed by planning? >> thank you, scott sanchez, the department will not oppose the plans? >> could we hear from the appellant as well? >> miss gonzalez? we want to make sure that you are in agreement with this? >> my husband and we are agree about the proposal. >> okay. >> we understand that you want to keep an eye and see if he is going to complain? >> i can't hear you at all. >> in the meantime we want to keep an eye on the construction and see if everything goes well. otherwise we have to do it again, so we will see how it goes. >> thank you. >> everything is fine with us. so we agreed of what he proposed. >> okay. >> thank you. >> is there any public comment? >> seeing none, mr. did duffy is there anything that you want to say? >> i have one comment to the department of representatives. >> good evening, is this going to be done under a special condition's permit? >> okay, that is all. >> okay. commissioners the matter is submitted. >> i have just a short comment and perhaps recommendation to the departmental representatives, and when i looked at the packet and the drawing that was... and it is not one that provides all of the information that is required. and it does not show adjoining conditions and so it was very difficult to review the case of it. and if you see that, rather than having us bring that up, and requesting the additional information, perhaps you can recommend it to the appellants or the permit holders, so that they can supplement their submital. >> any other comments? >> i am going to move that grantee appeal and approve the permit on the conditions and the revised drawings that have been presented. thank you. >> could you call the roll on that please? >> we have a motion from commissioner fung? to up hold this permit with the conditions and revised plans. and the letters dated 7-8 and the plans are dated 7-3. and on that motion, to up hold the permit with these revised plans, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> and commissioner honda. >> aye. >> the vote is 5-0 and the permit is up hold with these revised plans and conditions, thank you. >> thank you. so we can go back then to item 4 a a jurisdiction request, 865 market street, the board received a letter from mary murphy asking that the board take jurisdiction over the mobile food facility permit november 11 fmm-0061 which was issued on july 17, 2012, the 15-day appeal period expired on august 1, 2012 and the jurisdiction request was filed with the board's office on may 13, 2013, permit holder is kettle corn star, the project is the sale of kettle corn of funnel cakes and waffles and lemonade. >> we can start with the requestor. >> good afternoon, mary murphy and the county of the appellant, we are here today to respectfully request that this commission accept jurisdiction over the appeal of the renewal and by dpw to kettle corn star the respond ant. as set forth in the papers before you, they did not receive notice of the intent to issue the permit and only became aware of the permit after kettle corn commenced operations, the request was rejected who asked to put it to this board. when they filed an appeal it was also rejected. we are now before you requesting that you accept jurisdiction because we believe that this matter meets the standards established by section 10 of your board rules that the board may accept jurisdiction in the cases where the board finds that the city intentionally caused the requestor in being late in filing an appeal. the distribution lists demonstrates that the city failed to provide the requisite notice. and in making this request, we understand that this is a difficult situation, both west field and kettle corn have been diligent and have acted in good faith. for the reasons that we do not understand, west field did not receive notice of the permit application, this apparent error is at odds with the experience with the mobile food program because west field has received timely notices of other similar applications to dpw, as a consequence of this error, west field was denied due process, it consists of notice and an opportunity to it be heard and west field has been denied both. and notwithstanding that both parties have been diligent and as between the two, they have received the benefit of this and have been able to obtain the permit and to operate as it was unable to raise the concerns about the permit. kettle corn notes that some of the tenants did receive notice and that observation under scores the reasons for this request, the tenants would expect the landlord to undertake to protect the request and the investment in the neighborhood, the food program intended to revitalize the neighborhoods, however the area in front of the center is already extremely busy and vital not because of the hundreds of millions of dollars that they invested to build the center but because of the tenants that pay rent there and invest as a result. >> we submit that the situation meets your standards for accepting review and we hope that you will do so. thank you for your time and attention to this matter. >> miss murphy, i have a question, when did west field become aware of operations? >> i believe, i have not yet... from west field nicole is with me here today and i believe that it was after you noticed that they were there operating before or in front of the entrance to the west field center, do you want to speak to that issue. >> nicole with west field. we noticed when they first opened for business. >> when was that? >> i am looking for a date. >> that is the most exact date that you can give me? >> 2012 was last summer. >> is there a reason why there was not an appeal filed before now? >> and we or our office contacted dpw and we were told that the permit would be subject to renewal and the way that they do is has a new permit number and so we had the communication with the dpw advance of the renewal of the permit and then we were under the impression that we were supposed to wait for the approval. so that when the renewal was issued in a timely fashion filed the appeal of the renewal of the permit. but dpw said that the renewal was properly appealable to them and only heard the appeals of the initial grant and so they instructed us to the appeal of this board, when we filed it was rejected as not this being in your subject matter jurisdiction and it is a bit of a frustrating prospect as you can imagine and we are very aware of the fact that kettle corn has tried to play by the rules as well. everyone has pursued avenue and kettle corn about everything that they can, and this was not an error for west field or kettle corn, for some reason west field was not on the list and did not receive this notice, but the point of this story is that west field has never been afforded an opportunity to be heard on this matter, neither on the original permit and sent around in a circle with respect to the renewal of the permit. >> and this is my last question, is, or you mentioned that you have gotten notice about the other permits in the past. >> yes. and i guess what i am trying to get at is why you would be noticed as west field given that you are not a restaurant or a similar establishment as kettle corn? maybe that is the reason? but you said that you have gotten notices? the past. >> yes. >> the promissions are the 300 foot radius that you are familiar with and it is curious because the map of the 300 foot radius was from the wrong location and actually notwithstanding that, we actually would still be within 300 foot radius and the businesses are to be noticed whether they are a direct come pet or or not. and there were other tenants noticed i think as kettle corn has correctly noted in the papers and again we are completely conscious of the fact that this was not their fault they tried to do it by the book and it was a strange circumstance that we would get in the other situations through the people using some sort of radius map service, but not in this instance. >> but if other people were noticed and other businesses presumably within west field, what is the harm to west field, then? if those businesses have the opportunity to appeal or raise the concerns? >> west field is the landlord of a very major enterprise and i would believe that most are managed by someone who is just there working at the facility and would not necessarily think it was appropriate for them to be dealing with any sort of official notice from the city. i think that most people would expect that is something that the landlord would attend to if there is an official notice. i have not interviewed all of the tenants and i cannot speak to that, i would imagine that would be the case most people are busy running their businesses and west field's interests in protecting their interest in protecting their tenants who are there. and they are people who have been, you know, making an investment and paying rent and you know, have invested in their businesses at that location. and west field has invested in that location by building that center there and as a consequence, i think that is why the rules were set up to afford the business owners and the tenants in those businesses, the opportunity to be heard of. and the point of this story is that opportunity was not afforded to the landlord and it is a million foot enterprise, and it has another half a million feet at the nordstrom's side of it which it operates as part of the center under the school district and you know it is just, a very odd circumstance that they did not receive this notice. >> where should the notice have been given, 865 market street which is the notice and the front door. but the map the radius starts across the street. it is not an important point, it happened to include. >> who at west field did not get the notice? >> the physical location is on the fifth floor of the nordstrom side is 865 market street box a, is the mailing address. >> important to note. >> i want to know specifically you are claiming should have been. >> it should have been dropped in box a? >> correct. >> and it was dropped in every other doorway. >> so it just missed box a. >> except what in the public record would they find that? what if they are doing a search, you have not provided other than the list of distribution lists who should have been accessed or received notice as the owner, if you have not provided any assess or or any other information? >> west field is the owner of the center. >> and i know it, and i know the facility. >> have you not shown us that they should have received notice. >> i would respectfully submit that we are the owner of record and we are the property taxpayer. and we are clearly having developed that project under an opdba with the redevelopment agency and the city is well aware that through the records as well as the mailing records of the city that they are the owner of that facility. >> and this proper mailing address is at box a, at that location. >> where is that in the public record? >> you are not answering the question. >> where would you get it as a member of the public? >> is it on the website? >> it should be as... i would have to double check the assess or records. and i am not sure how the radio service is actually generates the list of the 300-foot radius. but it is clearly the owner of record of the facility. and the property tax that you know the property tax rolls should reflect that west field llc should have been noticed and as i said it has received notices in other instances and i believe this was inadvertent we do not believe that anyone was conspiring against us and we don't believe that kettle corn did anything wrong. >> i appreciate the comments and the problem here is how would anyone, if all of these different tenants were notified because they actually have suite numbers and actual addresses, how was yours missed? that is very difficult, if it is not caught on a public record, i don't know, and i don't operate the service or the radius services, that did this, so, it is difficult for our perspective to understand how with all of these other entities and all of these other locations, got this notice, and how did they miss you? >> this... >> well, i think that they missed you because that address is not located anywhere in the public record for them to have obtained. and had they slipped the notice under 865, would that have been sufficient? because in many, many places throughout the entire building and that notice has been given to 865 from my perspective. >> the notices that we would have to check the assess soar's records to see if it has 865 a, but the concept of the services is that they are supposed to provide notice of the property owners at that location and west field is the property owner and its address is 865 box a and it has received notices in other instances and so it is perplexing that it would receive notice sometimes when other people have used the radial service but not in this. >> does the business office has a suite number? >> the fifth floor or we will substitute box for suite. >> is there any other business on the fifth floor or just a business office? >> our office and the nordstom's spa. >> what is that actual address? >> i don't know exactly. >> and that is 845 or 865. >> 845. >> okay. so your position is that it should have been noticed to 865 box a. if it had gone to 845 fifth floor, would that have suffice? >> the postal carrier, i don't know if it would come to us. >> not everything fits into the box. >> is it a box or a slot? >> yes. >> i would assume that a package would not fit. >> if it does not fit in the box the carrier will come to my office. >> so that would be a proper place for delivery, okay? >> okay. >> i have another question going back to notice, i mean the time frame, within the jurisdiction that was filed. i don't, i think that i'm not following the chronology. and some time you are stating at the time of the renewal notice is when it was discovered or you waited for the renewal in order to appeal the renewal. and that was, when? march? >> it was in february of this year, i believe, we contacted the department and you know, the way that the dpw issues currently in such a way that often they have a time frame, and they are for a certain period of time whether it is for something like this or a street closure or anything and when it comes up for renewal and on its face you can actually take issue with that renewal. >> typically that will be the case but what dpw has stated in this enstance is that the position is that they do not accept any, even though there was a renewal required and that it would have reupped the inquiry, they basically take the position in the absence of any sort of complaints on the part of the person who holds the permit that... they almost take a position... >> what is the time frame? >> so that was in... the renewal of the permit was not timely when
calendaring issues love to find out from the department a breakdown what we're doing in terms of here i go in demographics whose coming in the academy and their background. i've heard that folks are being hired that look like san francisco. i i know there's waves of hiring >> maybe we could do that in september. >> september okay. a date in september would be great commissioner. >> well september 4th we're going to do the the honors. >> the 11th maybe. >> thanks. >> want to do it the 11th? >> 9/11 is not good. >> then 9, 18/25. >> no district. >> 9/25 then. >> 9/25. okay >> and that will be captain. >> got it. commissioner >> just want to remind the commissioners that we do have we're still working on this the scheduling resolution. i know that deputy city attorney and myself are trying to prepare and get the recommendations out for you but we haven't actually decided on when to return but we should get that scheduled in the next couple of weeks so we can have a date certain. i want everyone to know it's still open your agenda we'll believe circling back with you >> it's now time for public comment on items abc and d. >> vote on whether or not to have this in closed session and for the administrative code section action. >> thank you ladies and gentlemen, what happens is we'll move into closed section those are private issues and their confidential litigation matters. so any public comment regarding this okay no one it's closed call the next item >> line item 67 we go into closed session. >> and we want to vote on whether or not to go into closed session action. >> can i have a motion. >> all in favor. >> session. >> we're back in open session and you have a quorum. call a line item >> all discussion in closed session california code action. >> do have i have a movement foreclosure or non-disclosure. >> the last item is adjournment do r i have a motion. >> all in favor? thank you very much we're adjourned >> on december 28, 1912, san francisco mayor stared into a sea of 60,000 of constituents that gathered at geary. the berth of the first publicly owned transit system in the city, the san francisco municipal railway. ♪ >> i am so looking forward to the street fair tomorrow. >> it is in the mission, how are we going to get there? we are not driving. >> well what do you suggest? >> there are a lot of great transportation choices in the city and there is one place to find them all, sfnta.com. >> sfmta.com. >> it is the walking parking, and riding muni and it is all here in one place. >> sitting in front of my computer waiting transportation options that is not exactly how i want to spend my saturday night. >> the new sfmta.com is mobile friendly, it works great on a tablet, smart phone or a lap top, it is built to go wherever we go. >> cool. >> but, let's just take the same route tomorrow that we always take, okay? >> it might be much more fun to ride our bikes. >> i am going to be way too tired to ride all the way home. >> okay, how about this, we can ride our bikes there and then we can take muni home and it even shows us how to take the bikes on the bus, so simple right here on my phone. >> neat. we can finish making travel plans over dinner, now let's go eat. >> how about about that organic vegan gluten free rest rft. >> can't we go to the food truck. >> do you want to walk or take a taxi. >> there is an alert right here telling us there is heavy traffic in soma. >> let's walk there and then take a taxi or muni back. >> that new website gives us a lot of options. >> it sure does and we can use it again next weekend when we go to see the giants. there is a new destination section on the website that shows us how to get to at&t park. >> there is a section, and account alerts and information on parking and all kinds of stuff, it is so easy to use that even you can use it. >> that is smart. >> are you giving me a compliment. >> i think that i am. >> wow, thanks. >> now you can buy dinner. sfmta.com. access useful information, any >> >> good evening, welcome to the july 10, 2013 meeting of the san francisco board of appeals. the preceding officer this evening is board president, chris hwang and she is joined by lazarus and commissioner fung and honda and hurtado. >> and to high left is robert brian and he will provide the board with any needed legal advice at this evening, and at the control is the assistant. >> and also joined tonight by representatives of the city departments who have cases before the board in the front row is scott sanchez, he is a zoning administrator and representing the planning department and commission, and we are also joined by senior building inspect or and john kwo ng, the bureau of street use and mapping. >> if you could go over the meeting guidelines and conduct the swearing in process. >> the board requests that you turn off all phones and pagers that they will not go off. and the boards rules of presentation are as follows, appellants and permit holders have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments in the 7 or 3-minute periods, the members of the public who are not affiliated with the parties have up to three minutes each to address the board but no rebuttals, to assist the board in accurate preparation of the minutes, the members of the public who like to speak on an item are asked but not required to submit a card when you come up.. speaker cards and men's are available on the left side. they also welcome your comments and questions and there are customer forms on the left side. if you have a request for a board rehearing, speak to the staff during the break or after a meeting or call the office tomorrow morning, it is located at 1650 mission street and room 304. this meeting is broadcast live on san francisco government television, sfgov tv cable channel 78 and dvds of this meeting are available for purchase directly from sfgov tv and thank you for your attention and at this point in time we will conduct your swearing in process, if you wish to give your testimony and wish to have your evidence give weight, stand up and say i do. any member of the public may speak without taking this oath pursuant to the rights under the sunshine ordinance in the administrative code thank you. >> thank you. we will call item number one, which is public comment for items that are not on tonight's calendar. is there anyone who wishes to speak under this item? >> we can't hear you. >> these are some of the things that i made. >> do you want to identify yourself for the record? >> my name is paula davis. >> do you want me to stop the clock or are you going to say anything else? >> is there any other member of the public that would like to speak under this item? >> okay, seeing none we will move on to item number two which is commissioner comments and questions, anything? >> nothing, okay. >> actually, do we need to inform the public or is this noticed when commissioners are not g be here? >> we can make that announcement if you wish. >> our calendars are not listed on the website? >> no. >> i will not be here at the july 31 meeting. >> okay. is there any public comment on this item? >> seeing none we will move to item three which is the adoption of the minutes, commissioners for your consideration this evening, on the board's members of the june 19, 2013 meeting. any changes? >> no. >> i will move to adopt the minutes. >> is there any public comment on the minutes? >> seeing none, would you please call the roll? >> on that motion from the president, to adopt the june 19th, 2013 minutes, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, those minutes are adopted. >> thank you. with the president's consent we are going to call item number 6 out of order because we understand that they have reached a settlement this is 13.059. this project is at 2366, 33rd avenue, protesting the issuance on may 6, 2013 to peter sun of a permit to alter a building, two new wagt rooms and one bedroom and storage room and tool room and laundry area to be constructed at ground floor per plan, enclose new bedroom, below sun room and ground floor remodel kitchen and 2 bathrooms and if the parties would like to come forward jointly, you can present the settlement that you reached. >> good evening, board members. my name is peter, and the last name is sun. receding at 2366, 33rd avenue. and so i am happy to report that we have reached a settlement with our neighbor and briefly, if i may read the set of settlement letter. >> please? >> okay. so there are four items on this settlement letter. number one, the light wall in question on the second floor has increased to 2 foot and 6 inches. this change from the original proposed step of 1 foot and 6 inches, this will allow a total separation of four foot and six inches between neighboring walls. second item, there will be no set back. light wall on the ground floor. third item, a new window of approximately 4 foot by three foot will be added to the kitchen within the light wall. number four, final height of parapit wall and at light wall shall be maintained to allow maximum light to the neighboring windows. so, it is signed and dated today. >> did you also have revised plans? >> yes, i do. >> okay. >> this one. >> all right. >> okay, have they been reviewed by planning? >> thank you, scott sanchez, the department will not oppose the plans? >> could we hear from the appellant as well? >> miss gonzalez? we want to make sure that you are in agreement with this? >> my husband and we are agree about the proposal. >> okay. >> we understand that you want to keep an eye and see if he is going to complain? >> i can't hear you at all. >> in the meantime we want to keep an eye on the construction and see if everything goes well. otherwise we have to do it again, so we will see how it goes. >> thank you. >> everything is fine with us. so we agreed of what he proposed. >> okay. >> thank you. >> is there any public comment? >> seeing none, mr. did duffy is there anything that you want to say? >> i have one comment to the department of representatives. >> good evening, is this going to be done under a special condition's permit? >> okay, that is all. >> okay. commissioners the matter is submitted. >> i have just a short comment and perhaps recommendation to the departmental representatives, and when i looked at the packet and the drawing that was... and it is not one that provides all of the information that is required. and it does not show adjoining conditions and so it was very difficult to review the case of it. and if you see that, rather than having us bring that up, and requesting the additional information, perhaps you can recommend it to the appellants or the permit holders, so that they can supplement their submital. >> any other comments? >> i am going to move that grantee appeal and approve the permit on the conditions and the revised drawings that have been presented. thank you. >> could you call the roll on that please? >> we have a motion from commissioner fung? to up hold this permit with the conditions and revised plans. and the letters dated 7-8 and the plans are dated 7-3. and on that motion, to up hold the permit with these revised plans, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> and commissioner honda. >> aye. >> the vote is 5-0 and the permit is up hold with these revised plans and conditions, thank you. >> thank you. so we can go back then to item 4 a a jurisdiction request, 865 market street, the board received a letter from mary murphy asking that the board take jurisdiction over the mobile food facility permit november 11 fmm-0061 which was issued on july 17, 2012, the 15-day appeal period expired on august 1, 2012 and the jurisdiction request was filed with the board's office on may 13, 2013, permit holder is kettle corn star, the project is the sale of kettle corn of funnel cakes and waffles and lemonade. >> we can start with the requestor. >> good afternoon, mary murphy and the county of the appellant, we are here today to respectfully request that this commission accept jurisdiction over the appeal of the renewal and by dpw to kettle corn star the respond ant. as set forth in the papers before you, they did not receive notice of the intent to issue the permit and only became aware of the permit after kettle corn commenced operations, the request was rejected who asked to put it to this board. when they filed an appeal it was also rejected. we are now before you requesting that you accept jurisdiction because we believe that this matter meets the standards established by section 10 of your board rules that the board may accept jurisdiction in the cases where the board finds that the city intentionally caused the requestor in being late in filing an appeal. the distribution lists demonstrates that the city failed to provide the requisite notice. and in making this request, we understand that this is a difficult situation, both west field and kettle corn have been diligent and have acted in good faith. for the reasons that we do not understand, west field did not receive notice of the permit application, this apparent error is at odds with the experience with the mobile food program because west field has received timely notices of other similar applications to dpw, as a consequence of this error, west field was denied due process, it consists of notice and an opportunity to it be heard and west field has been denied both. and notwithstanding that both parties have been diligent and as between the two, they have received the benefit of this and have been able to obtain the permit and to operate as it was unable to raise the concerns about the permit. kettle corn notes that some of the tenants did receive notice and that observation under scores the reasons for this request, the tenants would expect the landlord to undertake to protect the request and the investment in the neighborhood, the food program intended to revitalize the neighborhoods, however the area in front of the center is already extremely busy and vital not because of the hundreds of millions of dollars that they invested to build the center but because of the tenants that pay rent there and invest as a result. >> we submit that the situation meets your standards for accepting review and we hope that you will do so. thank you for your time and attention to this matter. >> miss murphy, i have a question, when did west field become aware of operations? >> i believe, i have not yet... from west field nicole is with me here today and i believe that it was after you noticed that they were there operating before or in front of the entrance to the west field center, do you want to speak to that issue. >> nicole with west field. we noticed when they first opened for business. >> when was that? >> i am looking for a date. >> that is the most exact date that you can give me? >> 2012 was last summer. >> is there a reason why there was not an appeal filed before now? >> and we or our office contacted dpw and we were told that the permit would be subject to renewal and the way that they do is has a new permit number and so we had the communication with the dpw advance of the renewal of the permit and then we were under the impression that we were supposed to wait for the approval. so that when the renewal was issued in a timely fashion filed the appeal of the renewal of the permit. but dpw said that the renewal was properly appealable to them and only heard the appeals of the initial grant and so they instructed us to the appeal of this board, when we filed it was rejected as not this being in your subject matter jurisdiction and it is a bit of a frustrating prospect as you can imagine and we are very aware of the fact that kettle corn has tried to play by the rules as well. everyone has pursued avenue and kettle corn about everything that they can, and this was not an error for west field or kettle corn, for some reason west field was not on the list and did not receive this notice, but the point of this story is that west field has never been afforded an opportunity to be heard on this matter, neither on the original permit and sent around in a circle with respect to the renewal of the permit. >> and this is my last question, is, or you mentioned that you have gotten notice about the other permits in the past. >> yes. and i guess what i am trying to get at is why you would be noticed as west field given that you are not a restaurant or a similar establishment as kettle corn? maybe that is the reason? but you said that you have gotten notices? the past. >> yes. >> the promissions are the 300 foot radius that you are familiar with and it is curious because the map of the 300 foot radius was from the wrong location and actually notwithstanding that, we actually would still be within 300 foot radius and the businesses are to be noticed whether they are a direct come pet or or not. and there were other tenants noticed i think as kettle corn has correctly noted in the papers and again we are completely conscious of the fact that this was not their fault they tried to do it by the book and it was a strange circumstance that we would get in the other situations through the people using some sort of radius map service, but not in this instance. >> but if other people were noticed and other businesses presumably within west field, what is the harm to west field, then? if those businesses have the opportunity to appeal or raise the concerns? >> west field is the landlord of a very major enterprise and i would believe that most are managed by someone who is just there working at the facility and would not necessarily think it was appropriate for them to be dealing with any sort of official notice from the city. i think that most people would expect that is something that the landlord would attend to if there is an official notice. i have not interviewed all of the tenants and i cannot speak to that, i would imagine that would be the case most people are busy running their businesses and west field's interests in protecting their interest in protecting their tenants who are there. and they are people who have been, you know, making an investment and paying rent and you know, have invested in their businesses at that location. and west field has invested in that location by building that center there and as a consequence, i think that is why the rules were set up to afford the business owners and the tenants in those businesses, the opportunity to be heard of. and the point of this story is that opportunity was not afforded to the landlord and it is a million foot enterprise, and it has another half a million feet at the nordstrom's side of it which it operates as part of the center under the school district and you know it
francisco. >> it's a great way to be able to have fun and give back and walk away with a great feeling. for more opportunities we have volunteering every single day of the week. get in touch with the parks and recreation center so come (clapping) >> are you a parents that's unemployed and struggling to pay child support we have teamed up and positions ourself to offer an opportunity for permanent employment. for more information ♪ >> thank you for coming to the talent dance performance and talent show. [ applause ] >> today's performance and talent show. ♪ >> public recreation has every bit of the talent and every bit of the heart and soul of anything that any families are paying ten times for. >> you were awesome. >> >> good evening, welcome to the july 10, 2013 meeting of the san francisco board of appeals. the preceding officer this evening is board president, chris hwang and she is joined by lazarus and commissioner fung and honda and hurtado. >> and to high left is robert brian and he will provide the board with any needed legal advice at this evening, and at the control is the assistant. >> and also joined tonight by representatives of the city departments who have cases before the board in the front row is scott sanchez, he is a oning administrator and departmentnd comission, and we are also joined by senior building inspect or and john kwo ng, the bureau of street use and mapping. >> if you could go over the meeting guidelines and conduct the swearing in process. >> the board requests that you turn off all phones and pagers that they will not go off. and the boards rules of presentation are as follows, appellants and permit holders have seven minutes to present their cases and three minutes for rebuttal. people affiliated with these parties must include their comments in the 7 or 3-minute periods, the members of the public who are not affiliated with the parties have up to three minutes each to address the board but no rebuttals, to assist the board in accurate preparation of the minutes, the members of the public who like to speak on an item are asked but not required to submit a card when you come up.. speaker cards and men's are available on the left side. they also welcome your comments and questions and there are customer forms on the left side. if you have a request for a board rehearing, speak to the staff during the break or after a meeting or call the office tomorrow morning, it is located at 1650 mission street and room 304. this meeting is broadcast live on san francisco government television, sfgov tv cable channel 78 and dvds of this meeting are available for purchase directly from sfgov tv and thank you for your attention and at this point in time we will conduct your swearing in process, if you wish to give your testimony and wish to have your evidence give weight, stand up and say i do. any member of the public may speak without taking this oath pursuant to the rights under the sunshine ordinance in the administrative code thank you. >> thank you. we will call item number one, which is public comment for items that are not on tonight's calendar. is there anyone who wishes to speak under this item? >> we can't hear you. >> these are some of the things that i made. >> do you want to identify yourself for the record? >> my name is paula davis. >> do you want me to stop the clock or are you going to say anything else? >> is there any other member of the public that would like to speak under this item? >> okay, seeing none we will move on to item number two which is commissioner comments and questions, anything? >> nothing, okay. >> actually, do we need to inform the public or is this noticed when commissioners are not going to be here? >> we can make that announcement if you wish. >> our calendars are not listed on the website? >> no. >> i will not be here at the july 31 meeting. >> okay. is there any public comment on this item? >> seeing none we will move to item three which is the adoption of the minutes, commissioners for your consideration this evening, on the board's members of the june 19, 2013 meeting. any changes? >> no. >> i will move to adopt the minutes. >> is there any public comment on the minutes? >> seeing none, would you please call the roll? >> on that motion from the president, to adopt the june 19th, 2013 minutes, commissioner fung? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> commissioner honda? >> aye. >> the vote is 5-0, those minutes are adopted. >> thank you. with the president's consent we are going to call item number 6 out of order because we understand that they have reached a settlement this is 13.059. this project is at 2366, 33rd avenue, protesting the issuance on may 6, 2013 to peter sun of a permit to alter a building, two new wagt rooms and one bedroom and storage room and tool room and laundry area to be constructed at ground floor per plan, enclose new bedroom, below sun room and ground floor remodel kitchen and 2 bathrooms and if the parties would like to come forward jointly, you can present the settlement that you reached. >> good evening, board members. my name is peter, and the last name is sun. receding at 2366, 33rd avenue. and so i am happy to report that we have reached a settlement with our neighbor and briefly, if i may read the set of settlement letter. >> please? >> okay. so there are four items on this settlement letter. number one, the light wall in question on the second floor has increased to 2 foot and 6 inches. this change from the original proposed step of 1 foot and 6 inches, this will allow a total separation of four foot and six inches between neighboring walls. second item, there will be no set back. light wall on the ground floor. third item, a new window of approximately 4 foot by three foot will be added to the kitchen within the light wall. number four, final height of parapit wall and at light wall shall be maintained to allow maximum light to the neighboring windows. so, it is signed and dated today. >> did you also have revised plans? >> yes, i do. >> okay. >> this one. >> all right. >> okay, have they been reviewed by planning? >> thank you, scott sanchez, the department will not oppose the plans? >> could we hear from the appellant as well? >> miss gonzalez? we want to make sure that you are in agreement with this? >> my husband and we are agree about the proposal. >> okay. >> we understand that you want to keep an eye and see if he is going to complain? >> i can't hear you at all. >> in the meantime we want to keep an eye on the construction and see if everything goes well. otherwise we have to do it again, so we will see how it goes. >> thank you. >> everything is fine with us. so we agreed of what he proposed. >> okay. >> thank you. >> is there any public comment? >> seeing none, mr. did duffy is there anything that you want to say? >> i have one comment to the department of representatives. >> good evening, is this going to be done under a special condition's permit? >> okay, that is all. >> okay. commissioners the matter is submitted. >> i have just a short comment and perhaps recommendation to the departmental representatives, and when i looked at the packet and the drawing that was... and it is not one that provides all of the information that is required. and it does not show adjoining conditions and so it was very difficult to review the case of it. and if you see that, rather than having us bring that up, and requesting the additional information, perhaps you can recommend it to the appellants or the permit holders, so that they can supplement their submital. >> any other comments? >> i am going to move that grantee appeal and approve the permit on the conditions and the revised drawings that have been presented. thank you. >> could you call the roll on that please? >> we have a motion from commissioner fung? to up hold this permit with the conditions and revised plans. and the letters dated 7-8 and the plans are dated 7-3. and on that motion, to up hold the permit with these revised plans, president hwang? >> aye. >> commissioner hurtado? >> aye. >> vice president lazarus? >> aye. >> and commissioner honda. >> aye. >> the vote is 5-0 and the permit is up hold with these revised plans and conditions, thank you. >> thank you. so we can go back then to item 4 a a jurisdiction request, 865 market street, the board received a letter from mary murphy asking that the board take jurisdiction over the mobile food facility permit november 11 fmm-0061 which was issued on july 17, 2012, the 15-day appeal period expired on august 1, 2012 and the jurisdiction request was filed with the board's office on may 13, 2013, permit holder is kettle corn star, the project is the sale of kettle corn of funnel cakes and waffles and lemonade. >> we can start with the requestor. >> good afternoon, mary murphy and the county of the appellant, we are here today to respectfully request that this commission accept jurisdiction over the appeal of the renewal and by dpw to kettle corn star the respond ant. as set forth in the papers before you, they did not receive notice of the intent to issue the permit and only became aware of the permit after kettle corn commenced operations, the request was rejected who asked to put it to this board. when they filed an appeal it was also rejected. we are now before you requesting that you accept jurisdiction because we believe that this matter meets the standards established by section 10 of your board rules that the board may accept jurisdiction in the cases where the board finds that the city intentionally caused the requestor in being late in filing an appeal. the distribution lists demonstrates that the city failed to provide the requisite notice. and in making this request, we understand that this is a difficult situation, both west field and kettle corn have been diligent and have acted in good faith. for the reasons that we do not understand, west field did not receive notice of the permit application, this apparent error is at odds with the experience with the mobile food program because west field has received timely notices of other similar applications to dpw, as a consequence of this error, west field was denied due process, it consists of notice and an opportunity to it be heard and west field has been denied both. and notwithstanding that parties have been diligent and as between the two, they have received the benefit of this and have been able to obtain the permit and to operate as it was unable to raise the concerns about the permit. kettle corn notes that some of the tenants did receive notice and that observation under scores the reasons for this request, the tenants would expect the landlord to undertake to protect the request and the investment in the neighborhood, the food program intended to revitalize the neighborhoods, however the area in front of the center is already extremely busy and vital not because of the hundreds of millions of dollars that they invested to build the center but because of the tenants that pay rent there and invest as a result. >> we submit that the situation meets your standards for accepting review and we hope that you will do so. thank you for your time and attention to this matter. >> miss murphy, i have a question, when did west field become aware of operations? >> i believe, i have not yet... from west field nicole is with me here today and i believe that it was after you noticed that they were there operating before or in front of the entrance to the west field center, do you want to speak to that issue. >> nicole with west field. we noticed when they first opened for business. >> when was that? >> i am looking for a date. >> that is the most exact date that you can give me? >> 2012 was last summer. >> is there a reason why there was not an appeal filed before now? >> and we or our office contacted dpw and we were told that the permit would be subject to renewal and the way that they do is has a new permit number and so we had the communication with the dpw advance of the renewal of the permit and then we were under the impression that we were supposed to wait for the approval. so that when the renewal was issued in a timely fashion filed the appeal of the renewal of the permit. but dpw said that the renewal was properly appealable to them and only heard the appeals of the initial grant and so they instructed us to the appeal of this board, when we filed it was rejected as not this being in your subject matter jurisdiction and it is a bit of a frustrating prospect as you can imagine and we are very aware of the fact that kettle corn has tried to play by the rules as well. everyone has pursued avenue and kettle corn about everything that they can, and this was not an error for west field or kettle corn, for some reason west field was not on the list and did not receive this notice, but the point of this story is that west field has never been afforded an opportunity to be heard on this matter, neither on the original permit and sent around in a circle with respect to the renewal of the permit. >> and this is my last question, is, or you mentioned that you have gotten notice about the other permits in the past. >> yes. and i guess what i am trying to get at is why you would be noticed as west field given that you are not a restaurant or a similar establishment as kettle corn? maybe that is the reason? but you said that you have gotten notices? the past. >> yes. >> the promissions are the 300 foot radius that you are familiar with and it is curious because the map of the 300 foot radius was from the wrong location and actually notwithstanding that, we actually would still be within 300 foot radius and the businesses are to be noticed whether they are a direct come pet or or not. and there were other tenants noticed i think as kettle corn has correctly noted in the papers and again we are completely conscious of the fact that this was not their fault they tried to do it by the book and it was a strange circumstance that we would get in the other situations through the people using some sort of radius map service, but not in this instance. >> but if other people were noticed and other businesses presumably within west field, what is the harm to west field, then? if those businesses have the opportunity to appeal or raise the concerns? >> west field is the landlord of a very major enterprise and i would believe that most are managed by someone who is just there working at the facility and would not necessarily think it was appropriate for them to be dealing with any sort of official notice from the city. i think that most people would expect that is something that the landlord would attend to if there is an official notice. i have not interviewed all of the tenants and i cannot speak to that, i would imagine that would be the case most people are busy running their businesses and west field's interests in protecting their interest in protecting their tenants who are there. and they are people who have been, you know, making an investment and paying rent and you know, have invested in their businesses at that location. and west field has invested in that location by building that center there and as a consequence, i think that is why the rules were set up to afford the business owners and the tenants in those businesses, the opportunity to be heard of. and the point of this story is that opportunity was not afforded to the landlord and it is a million foot enterprise, and it has another half a million feet at the nordstrom's side of it which it operates as part of the center under the school district and you know it is just, a very odd circumstance that they did not receive this notice. >> where should the notice have been given, 865 market street which is the notice and the front door. but the map the radius starts across the street. it is not an important point, it happened to include. >> who at west field did not get the notice? >> the physical location is on the fifth floor of the nordstrom side is 865 market street box a, is the mailing address. >> important to note. >> i want to know specifically you are claiming should have been. >> it should have been dropped in box a? >> correct. >> and it was dropped in every other doorway. >> so it just missed box a. >> except what in the public record would they find that? what if they are doing a search, you have not provided other than the list of distribution lists who should have been accessed or received notice as the owner, if you have not provided any assess or or any other information? >> west field is the owner of the center. >> and i know it, and i know the facility. >> have you not shown us that they should have received notice. >> i would respectfully submit that we are the owner of record and we are the property taxpayer. and we are clearly having developed that project under an opdba with the redevelopment agency and the city is well aware that through the records as well as the mailing records of the city that they are the owner of that facility. >> and this proper mailing address is at box a, at that location. >> where is that in the public record? >> you are not answering the question. >> where would you get it as a member of the public? >> is it on the website? >> it should be as... i would have to double check the assess or records. and i am not sure how the radio service is actually generates the list of the 300-foot radius. but it is clearly the owner of record of the facility. and the property tax that you know the property tax rolls should reflect that west field llc should have been noticed and as i said it has received notices in other instances and i believe this was inadvertent we do not believe that anyone was conspiring against us and we don't believe that kettle corn did anything wrong. >> i appreciate the comments and the problem here is how would anyone, if all of these different tenants were notified because they actually have suite numbers and actual addresses, how was yours missed? that is very difficult, if it is not caught on a public record, i don't know, and i don't operate the service or the radius services, that did this, so, it is difficult for our perspective to understand how with all of these other entities and all of these other locations, got this notice, and how did they miss you? >> this... >> well, i think that they missed you because that address is not located anywhere in the public record for them to have obtained. and had they slipped the notice under 865, would that have been sufficient? because in many, many places throughout the entire building and that notice has been given to 865 from my perspective. >> the notices that we would have to check the assess soar's records to see if it has 865 a, but the concept of the services is that they are supposed to provide notice of the property owners at that location and west field is the property owner and its address is 865 box a and it has received notices in other instances and so it is perplexing that it would receive notice sometimes when other people have used the radial service but not in this. >> does the business office has a suite number? >> the fifth floor or we will substitute box for suite. >> is there any other business on the fifth floor or just a business office? >> our office and the nordstom's spa. >> what is that actual address? >> i don't know exactly. >> and that is 845 or 865. >> 845. >> okay. so your position is that it should have been noticed to 865 box a. if it had gone to 845 fifth floor, would that have suffice? >> the postal carrier, i don't know if it would come to us. >> not everything fits into the box. >> is it a box or a slot? >> yes. >> i would assume that a package would not fit. >> if it does not fit in the box the carrier will come to my office. >> so that would be a proper place for delivery, okay? >> okay. >> i have another question going back to notice, i mean the time frame, within the jurisdiction that was filed. i don't, i think that i'm not following the chronology. and some time you are stating at the time of the renewal notice is when it was discovered or you waited for the renewal in order to appeal the renewal. and that was, when? march? >> it was in february of this year, i believe, we contacted the department and you know, the way that the dpw issues currently in such a way that often they have a time frame, and they are for a certain period of time whether it is for something like th
concerned, because i am given such a short time to really say anything. i can write down on that piece of paper before the meeting, exactly what i want the commission and the boards to hear. and so i would ask that you up hold mr. hartz position, because as a citizen, we at times have to be able to have our words put into the body of the minutes because that is where we intend to say it and because we are being denied the amount of time to say it by writing it down before the meeting and passing it in at that time, that that qualifies as being said at the meeting. thank you. >> thank you very much. >> stop the hate and don't give money to the friends of the library and don't accept the money from the friends of the library. the provision of being able to allow people to summarize their own words passed by the voters in 1999 in the sunshine ordinance, before it passed i was one of the most blatant victims. i started to submit citizen summaries right after the law went into effect, they created something called appendix a, even though there was no notice in the minutes themselves that there was an appendix, the type face was smaller than anything else in the minutes. s of course, they refused to include the appendix on the on-line version even though the minutes were submitted by e-mail. and after several years, i pointed out to the secretary, that the superior court had every case document on-line and after that, they put the appendix in a pdf and if you clicked the tiny link on the bottom there was no link back. finally, they stopped distributing the appendix with the draft minutes that are distributed to 250 people. it was not distributed to the commissioners and the public at the library meeting where they were approved. the only place that it was attached to the minutes was the two copies that went to the archive. at that point i stopped submitting them for a while and that was when i started beginning my public comments with stop the hate, stop the ignorance and don't give money to the friends of the library and don't accept money from the friends of the library. they can't claim that they have any claim to good faith or being reasonable because they have never done anything, unless they were forced to. no matter how unreasonable it was. getting rid of the public has always been acceptable whether their methods were legal or illegal. what is the essential underlying problem? the underlying problem is that when rich and influential people offer them money to keep out the undesirable, quote unquote, they accept that money. they are proud of themselves because they can count the money, but they can't count the harm to our expectations to justice and the damage to the social fabric, the problem is that the definition of an desirable is completely self-serving, it is just someone who is not in on the ground. that they themselves enjoy. as a matter of fact when the undesirables complain about their abuse and corruption, it triggers a $5 donation to what they call the public comment fund. so that the public comment can be demeaned as just raising more money for the friends. commission president gomez contributes to it and they have a cover story. it is that they are just taunting the crazy guy. some cover story. >> good afternoon commissioners, dr. derek kurr. excluding public comment from the body of a minutes is really an act of disrespect. it is a statement that says that the members of the public are inferior, to the people on a particular commission or board or other body. and this is a wide-spread problem. and it will be so easily fixed many of the citizens who speak are extremely knowledgeable about the issues that they bring to your attention. so, it will be easy to just put the comments in the minutes and please everyone. >> i also want to speak in support of mr. hartz's point that if you do not find that some fault occurred, there is no reason for the library to not switch back to what they were doing before. because if they can get away by switching, and putting something in the body for a while, and just as easy they may decide not to do it, so really there should be some promise or some commitment from the agency to make the change a policy change, a permanent change. and thank you very much. >> who would have thought that ten years after the sunshine ordinance was adopted we would be arguing over a legal term called attachment. the plain reading, the ordinary reading that any person would get would mean the inclusion in the body of the minutes. and that is what the public probably understood in 1999, when it adopted the sunshine ordinance. the concept is attachment is really a legal concept and it is actually said as attached hereto and incorporated herein and we don't get that i think that it is quasi legal ordinances in. the government guide is an unsupported comment from the city attorney, there is no opinion, there is no justification for it and it is not worth the sense that it is written on. if it were, supported with some legal basis, of case law, differently. different results. it is the task force's job to determine these issues, not the city attorney's. that is what it is there for. it is the determinations are enforcable. the fact that mr. herrera has repeatedly poked his finger in the eye of the public about these written summaries, is an indication of the willfulness of this conduct. the final point i think that i should make is, prop 59 requires ordinances, laws, findings and so forth, that support public access to be construed. requiring a change through the good government guide does not accomplish that purpose, it actually restricts the specific terms of an ordinance. the dictionary definition expressing the situation of something that is or appears to be enclosed or surrounded by something else. i don't see the word attachment anywhere in that. >> paula davis and i want to endorse what ray hartz said, i think that it is very important for the written summary to be included in the body of the minutes and i can speak to myself and the minute that it took place in a street art meeting on november 14, 2012 when i was escorted out of the building when i was speaking under public comment and it was less than 3 minutes and 153 words and what appeared in the minutes of that meeting was a statement underlined statement four times. no idea what that was about. but my words were not heard that day. thank you. >> peter wolf director of library users associations. the library abuses of the public through violations of the law is a long-standing one and you actually had a referal from the sunshine task force about a complaint that i made some years ago. it was the first one that was included by or within mr. grossman's legal case, which was settled presumably out of court. the library's history of attempts to exclude or to blur, essentially silence public comment with which it does not agree is a long-standing one. the best example that i can think of from quite a ways back aside from the ones where it said peter warfield discussed his opinions about such and such was on a heated item in the past which had to do with an rfid issue. in which the participants got not a single word of summary in their own minutes including the aclu and the electronic frontier foundation which was opposed to the implementation of rfid. and the public was given five words or less in some cases of sentence fragments to summarize what they said. in my case, peter war field, process used to consider rfid. that was the entire entry for what i had spent three minutes discussing march 4, 2004. i think that mr. herrera's history starts right from the very beginning of this tenure as city librarian, when he set up a so-called technology and privacy advisory committee to look into the question of rfid, the advisebility of rfid installation which people thought was intended to justify it. there, there was initially, no inclusion at all of public comment in the committees meetings it was not strictly required by sunshine. eventually, the public got to comment last. if you look on the website there are no minutes of those meetings as the agendas were published and when the report was finally published, it was arranged that the final report had no mention whatsoever anywhere including in the table of contents that there was a whole section that they had intended to include with public comment and that is no mention there at all. there is a separate document which, of course is very easy not to find. this is a long-standing issue and we hope that you find in ray hartz's favor, thank you. >> questions, by the commissioners for either the complainant mr. hartz or the respondent mr. herrera? >> i have a question for mr. herrera. >> would you mind returning to the podium? >> thank you. >> thank you, mr. herrera. so, the draft format that you distributed today, is that the policy and practice that has been adopted by the library commission going forward? >> it is yet to be adopted but that is what we are intending to do from this point forward. >> and it will be applied to all speakers? >> yes. >> thank you. >> while you are there, mr. herrera, a question. why were you so resistant to putting the 150 words in the body of the minutes as opposed to putting them on as an attachment. >> we had worked with the city attorney's office and followed the good government guide and so based on that opinion, we had basically continued to assert that we were in compliance by attaching them and including them as an attachment. >> but you were aware that after the city attorney had issued that opinion, the sunshine task force said that opinion was wrong and wanted them to go into the body of the minutes. why did you continue to resist that? >> again, we basically went on the opinion and followed the city attorney's advice. all of the other commissions were doing the same thing it was not until your commission changed its practice that we followed suit. to do that. >> now, if a member of the public went to the library commission's website, it would get the minutes and it would also pull up the attachments? >> they are included as part of the minutes, that is correct. >> so that from the point of view of the public, the information which you are now proposing to include in the body of the minutes, to the public, it was a matter of just simply reading what was attached to the official minutes? >> that is correct. >> that is correct. >> thank you. >> mr. herrera, i also have a couple of questions. and so if a member of the public were to go on to the website and download the minutes, would the minutes, or would the 150-word summary be in the same document as the rest of the minutes or a separate document that would be attached to the minutes. >> i would defer to the commission secretary, i am speculating that they are part of the minutes, but i can verify. >> blackman, library commission secretary, yes they were all part of one document. so you stroll through the minutes and we actually put in the minutes where the speaker made his comments please see addendum for the 150 word statement. >> so in the library commission's minutes the speaker made a comment there would be a shorter summary of that speakers comments and a reference to later in the minutes where the full 150 word summary was provided. >> correct. >> thank you. >> any further questions for miss blackman? >> yes, i have a question of mr. hartz. yes, commissioner. >> have you reviewed the draft that mr. herrera says is going to be the form that the commission is going to adopt going forward in so far as including public comments? >> i have reviewed it yes. >> and assuming that they adopt it and implement it, does that cure your concern? >> no. >> why. >> because the similar simple fact is that they did else wise for two years, i would like to point something out on those particular minutes that you are seeing, up until these minutes another member of the public, mr. james chavy submitted 150 word summaries also and his remains as an addendum through december of last year. and their statements that they put it in the addendum and then noted in the thing that has changed, that has been so many variations, if you go back through and look through the notes, sometimes it was a blue numeral i, as he mentioned you had to click on that and once you clicked on that you could see my comment but you could not get back to the rest of the minutes. >> my question is if they adopt this, going forward n spite of all of your complaints about the past, i want it know whether this cures the problem that you believe existed? >> no. >> and the reason is that if you look at the two cases i'm talking about, mr. chafy's comments are listed as a summary of his comments provided, mine is listed as a statement read by. which is not accurate. i did read the statement, but that is not all that i said. and up until this set of minutes, they would add additional comments. they would put additional comments before me 150-word summary or after the 150-word summary or sometimes both. so basically they had been all over the place and for them to come up here and answer a question by one of your members and say this is the way that we have always did it and they have been all over the board. all of these are approved documents and if you go back and look at them, they have handled this in every possible way, that is different. now you are saying is this, you know, i think trying to make it sound like i am being unreasonable. >> no, i'm trying. >> what i am saying is they have not established a clear policy on how they are going to handle these because even in the minutes you have got they are handling them in two different ways. >> how are they handling them in two different ways? show me. >> saying that he read the following statement and if you go back to page number one, you see mr. chafes submission and it is proceeded with the following written summary as provided by the speaker a citizen and the content is never generated by or subject to approval of the verification of accuracy >> that is a copy, starting with the word stop over to the word check, at the top of of the second page, that is a verbatim of what the written statement was, correct? >> in which page are you talking about? one or three? >> that is page one, it says a written statement was provided by the speaker. >> right. >> and then it goes on and it was what appears to be the written statement starting with the word stop, right? >> yes. >> ending with the word check on page 2. >> yes, that is the entire 150-word or less statement. >> right. >> right? >> that is all that you are asking them to do, isn't it? is to include the statement itself, the written statement that was handed to the commission during the time of your public comment, that that be included? >> and what i am saying is that is not the limit, the limit is that all members of the public who submit a statement should have it included in the body and it should be treated in the same way not arbitrarily we are going to put in one person and proceeding comment and put in another comment and add something to it and another person's comment in. you know it is supposed to be, a policy, and there is nothing here that says, they are going to even establish or even take this policy let alone make it one that is fair. >> i guess that i just don't understand what i thought your complaint is that a member of the public hands in a written statement of not more than 150 words and you want that 150-word statement verbatim to be included in the bod y of the minutes. >> yekt >> if they do that, haven't they complied with the requirement that the written statement be included in the body of the minutes? >> but they have not done that. >> if they do. >> it is a hypothetical question. >> i know that your complaint is that they did not do it for everybody. what mr. renne is saying, that if they included everyone's 150-word summary in the body of the minutes, would that in your mind, remedy the issue? >> going forward, yes. but it does not answer the fact that they spent the last two years avaiding it, avaiding it, and i don't think that the law is intended to be something where they go along for two years, and only when mr. herrera has the chance of being found in willful violation, does he actually even show up at the hearings. he sends miss blackman to the hearings to represent him and that is the lowest and the biggest exhibit of lack of integrity, sending a subordinate to answer for your behavior. >> commissioner studley? >> i don't have any questions. i am prepared to speak to the issue when you are ready. >> okay. >> mr. hartz i have a question for you, assuming that a speaker says something during public comment, submits a summary that is radically different from the statement that they gave but submitted it as part of the summary. would it in your mind be satisfacotry to submit it? >> a summary is not the same words that were spoken, it is your interpretation of the words you spoke. and radically different is a very subjective term it is not an objective term. so, yes, if it was radically different, they could raise that argument. not once in 3 years, they have attempted to either say my statements or anyone elses were more than 150 words or that they varied from what we actually said. so yes, it may be a hypothetical question but it is a hypothetical question that has never come up and i am not sure why it is coming up now. >> it is coming up in my mind because in some ways, summary in the or at the time that the statement is made within the chronology of the minutes provided by a reference of 150-word statement provided actually can arguably provide the speaker more explanation for what was said because minutes in the body will reflect the quarters interpretation of the summary and then the addendum would provide the actual 150-word statement, it is not clear to me that in all cases the 150 word statement included in the place at which the statement was made provides the greatest form of or the most speech for the speaker. in any event,... >> but my question is why do they get to approve my summary and they don't get to approve anything else in the minutes? it is a member of the public gets up and says that the moon is made of green cheese. why can't they then proceed that with a statement saying that we are not verifying the accuracy of this statement. it is obviously inaccurate. because the minutes are a record of what actually happened not... >> i don't think that they are saying that... i think that the point is that the 150-word summary is submitted as a summary and not verifying if that is a summary or said at the meeting. >> the real question is why are they doing it and mr. lee the vice president of the library commission when he appeared at the sunshine ordinance task force listed a number of reasons, we don't like what they say, we don't like what they say, how long they speak, how often they speak and he basically said, we don't like it, which is the reason that the brown act and the sunshine ordinance say they can't abridge these. >> okay. >> i don't have any further questions for you mr. hartz. >> unless someone else does? >> thank you mr. hartz. >> commissioners, the issue on this agenda item. commissioner studley? >> simply and others can build on this. when the referal from the sunshine ordinance task force i do not see a violation of 67.16. on the specific question on whether the 150-word summaries provided by speakers were properly or improperly included in record of the meetings. the word in the minutes, seems to me to be satisfied by the fact that the documents were pagenated in the examples of of issue here through one through 9 or one through 16 including the addendum, that seems to me the clearest lay version of what is a document? it is a thing that is in a set of continuous pages. they are referred to in the text that were generated by the recording secretary of the meeting. the sunshine ordinance task force cannot add or imply the word in the body of the minutes. that is one way to read it. but that is not in the under-lying law and requirement. we have heard some comment tonight about whether everyone's summary was included whether people were treated the same, whether their summaries were included in the same sort of way. and that might be an issue, i see them going back that it was listed as one of the uncontested/contested facts in the memorandum of august 17th. but, i see no reference to that issue in the sunshine ordinance task force findings. so there is nothing before me that i can find that raises that issue. although it has been raised here tonight, and it will trouble me if different members of the public were treated differently or if the statements were treated differently but that seems to have been mentioned but never addressed by the sunshine task force and therefore, there is nothing that i see before me that i can
teeth exercise, first they would not put them in at all then they put them in as an addendum and after two and a half years of going back and forth we are finally agreeing to do it right and we want you to just ignore the fact that for two years we did it wrong. as far as i can tell the document that you have been presented this is the first time that they have included 150 word summaries from other members of the public. for a while they included some of mine, but didn't include others. so it was like, mr. hartz gets special treatment and his go in the body of the minutes, but these other people can be addendaed. they keep changing their position and changing what they want to do and what, you know, what the requirements are and at no time have they made any decision at the library commission stating that the example that you have is their policy going forward. so basically, as far as the reality goes, they could simply go back tomorrow and change these right back to where they were and very frankly having dealt with mr. herrera for the last two years, and actually having public records withheld from me, had him drag that out for 18 months, finally having to go back to the task force and having them rule it, yes, you did not follow the determination and you still withheld this and we are going to refer to the board of supervisors for action speaks pretty clearly as to his approach to this. he did not like what we had to say. the library commission did not like what we had say. if if they could not shut us up, and i will remind you this was the same library commission where you voted to recommend to the mayor that the president be removed for silenting public comment. well that kind of taught them a lesson that they are not allowed to silence public comment but if they can marginalize it or depreciate ate they are determined to do that. the simple fact that they have now after all of this time decided to provide you with an example that really has never been discussed at the library commission and mr. herrera has constantly raised one thing he has constantly raised the idea that i don't get to determine these things, the library commission does. and yet now we have these minutes, which are the library commission minutes and he has changed them without any discussion with the library commission. he talks out of both sides of his mouth. >> i thought was to take public comment and then for the commissioners to ask whatever questions we might have of mr. hartz and mr. herrera? is that an acceptable procedure for the commission? >> public comment? >> good afternoon, chair hurtado i'm patrick and here as my private exercising the first amendment rights to free speech. it is troubling, mr. herrera gets up here and talks about 150-word summaries, i believe that the language in the sunshine ordinance that if you submit 150-word written public testimony to be incorporated without being summarized by anybody. submitted in 150 words and have you to publish it exactly the way that it is submitted. you are here to enforce provisions of the sunshine ordinance. you are not here to allow good government guide to supercede, trump, the sunshine ordinance. there are many things in mr. herrera's good government guide that are not worthy of being used as toilet paper. you will see the parallel to the problem mr. hartz is encountering with the good government guide similar issue in your next agenda item and mr. wooding's case in which the good government guide also contains material on page 89 that is not worthy of a public rest room. page 89 of the good government guide says that departmental destruction policies for material that remains on back up tapes or analogous paper records that the department may have lawfully discarded but may be found in the city-owned dumpster, these are the public records act that would be separate. and the sunshine ordinance requires to search the trash for such records that is pure nonsense, the back up tapes are there for daily use, speaking as an experienced secretary, i know that almost every secretary in this city understands from the get-go that if they lose a document, it can be pulled from back up tape. if they inadvertently delete a document, a memo or a draft version of a memo or a version of a document going through a revision cycle. the secretary inadvertently is a human makes an error and deletes something, departmental is there to recover it immediately. i have done so over the 14 years of my career. none of it has been intentionally and it has always been restored from back up tape. mr. herrera good government guide needs to be rewritten and you need to tell them to rewrite it. >> i'm ron mcclock and i am a citizen and i have been going to the city meetings for 40 years with the arts commission and to the board of supervisors also and i found that this concept of minimum of three minutes is being used as a maximum of three minutes. i have gone to meetings where myself and my brother were the only people at the meetings and yet after three minutes, we have been told our time is up and please sit down. basically shut up. so i have gone to art commission meetings and presented my 150-word statement because i wanted to make sure the points that i wanted to have brought out were put into the minutes of the meeting. the city attorney is incorrectly says that just because you hand in that piece of paper, that that is an not actually what should be put in the minutes. when i hand that piece of paper in, i'm handing that piece of paper as a summary of what i am saying and as far as i am concerned, because i am given such a short time to really say anything. i can write down on that piece of paper before the meeting, exactly what i want the commission and the boards to hear. and so i would ask that you up hold mr. hartz position, because as a citizen, we at times have to be able to have our words put into the body of the minutes because that is where we intend to say it and because we are being denied the amount of time to say it by writing it down before the meeting and passing it in at that time, that that qualifies as being said at the meeting. thank you. >> thank you very much. >> stop the hate and don't give money to the friends of the library and don't accept the money from the friends of the library. the provision of being able to allow people to summarize their own words passed by the voters in 1999 in the sunshine ordinance, before it passed i was one of the most blatant victims. i started to submit citizen summaries right after the law went into effect, they created something called appendix a, even though there was no notice in the minutes themselves that there was an appendix, the type face was smaller than anything else in the minutes. s of course, they refused to include the appendix on the on-line version even though the minutes were submitted by e-mail. and after several years, i pointed out to the secretary, that the superior court had every case document on-line and after that, they put the appendix in a pdf and if you clicked the tiny link on the bottom there was no link back. finally, they stopped distributing the appendix with the draft minutes that are distributed to 250 people. it was not distributed to the commissioners and the public at the library meeting where they were approved. the only place that it was attached to the minutes was the two copies that went to the archive. at that point i stopped submitting them for a while and that was when i started beginning my public comments with stop the hate, stop the ignorance and don't give money to the friends of the library and don't accept money from the friends of the library. they can't claim that they have any claim to good faith or being reasonable because they have never done anything, unless they were forced to. no matter how unreasonable it was. getting rid of the public has always been acceptable whether their methods were legal or illegal. what is the essential underlying problem? the underlying problem is that when rich and influential people offer them money to keep out the undesirable, quote unquote, they accept that money. they are proud of themselves because they can count the money, but they can't count the harm to our expectations to justice and the damage to the social fabric, the problem is that the definition of an desirable is completely self-serving, it is just someone who is not in on the ground. that they themselves enjoy. as a matter of fact when the undesirables complain about their abuse and corruption, it triggers a $5 donation to what they call the public comment fund. so that the public comment can be demeaned as just raising more money for the friends. commission president gomez contributes to it and they have a cover story. it is that they are just taunting the crazy guy. some cover story. >> good afternoon commissioners, dr. derek kurr. excluding public comment from the body of a minutes is really an act of disrespect. it is a statement that says that the members of the public are inferior, to the people on a particular commission or board or other body. and this is a wide-spread problem. and it will be so easily fixed many of the citizens who speak are extremely knowledgeable about the issues that they bring to your attention. so, it will be easy to just put the comments in the minutes and please everyone. >> i also want to speak in support of mr. hartz's point that if you do not find that some fault occurred, there is no reason for the library to not switch back to what they were doing before. because if they can get away by switching, and putting something in the body for a while, and just as easy they may decide not to do it, so really there should be some promise or some commitment from the agency to make the change a policy change, a permanent change. and thank you very much. >> who would have thought that ten years after the sunshine ordinance was adopted we would be arguing over a legal term called attachment. the plain reading, the ordinary reading that any person would get would mean the inclusion in the body of the minutes. and that is what the public probably understood in 1999, when it adopted the sunshine ordinance. the concept is attachment is really a legal concept and it is actually said as attached hereto and incorporated herein and we don't get that i think that it is quasi legal ordinances in. the government guide is an unsupported comment from the city attorney, there is no opinion, there is no justification for it and it is not worth the sense that it is written on. if it were, supported with some legal basis, of case law, differently. different results. it is the task force's job to determine these issues, not the city attorney's. that is what it is there for. it is the determinations are enforcable. the fact that mr. herrera has repeatedly poked his finger in the eye of the public about these written summaries, is an indication of the willfulness of this conduct. the final point i think that i should make is, prop 59 requires ordinances, laws, findings and so forth, that support public access to be construed. requiring a change through the good government guide does not accomplish that purpose, it actually restricts the specific terms of an ordinance. the dictionary definition expressing the situation of something that is or appears to be enclosed or surrounded by something else. i don't see the word attachment anywhere in that. >> paula davis and i want to endorse what ray hartz said, i think that it is very important for the written summary to be included in the body of the minutes and i can speak to myself and the minute that it took place in a street art meeting on november 14, 2012 when i was escorted out of the building when i was speaking under public comment and it was less than 3 minutes and 153 words and what appeared in the minutes of that meeting was a statement underlined statement four times. no idea what that was about. but my words were not heard that day. thank you. >> peter wolf director of library users associations. the library abuses of the public through violations of the law is a long-standing one and you actually had a referal from the sunshine task force about a complaint that i made some years ago. it was the first one that was included by or within mr. grossman's legal case, which was settled presumably out of court. the library's history of attempts to exclude or to blur, essentially silence public comment with which it does not agree is a long-standing one. the best example that i can think of from quite a ways back aside from the ones where it said peter warfield discussed his opinions about such and such was on a heated item in the past which had to do with an rfid issue. in which the participants got not a single word of summary in their own minutes including the aclu and the electronic frontier foundation which was opposed to the implementation of rfid. and the public was given five words or less in some cases of sentence fragments to summarize what they said. in my case, peter war field, process used to consider rfid. that was the entire entry for what i had spent three minutes discussing march 4, 2004. i think that mr. herrera's history starts right from the very beginning of this tenure as city librarian, when he set up a so-called technology and privacy advisory committee to look into the question of rfid, the advisebility of rfid installation which people thought was intended to justify it. there, there was initially, no inclusion at all of public comment in the committees meetings it was not strictly required by sunshine. eventually, the public got to comment last. if you look on the website there are no minutes of those meetings as the agendas were published and when the report was finally published, it was arranged that the final report had no mention whatsoever anywhere including in the table of contents that there was a whole section that they had intended to include with public comment and that is no mention there at all. there is a separate document which, of course is very easy not to find. this is a long-standing issue and we hope that you find in ray hartz's favor, thank you. >> questions, by the commissioners for either the complainant mr. hartz or the respondent mr. herrera? >> i have a question for mr. herrera. >> would you mind returning to the podium? >> thank you. >> thank you, mr. herrera. so, the draft format that you distributed today, is that the policy and practice that has been adopted by the library commission going forward? >> it is yet to be adopted but that is what we are intending to do from this point forward. >> and it will be applied to all speakers? >> yes. >> thank you. >> while you are there, mr. herrera, a question. why were you so resistant to putting the 150 words in the body of the minutes as opposed to putting them on as an attachment. >> we had worked with the city attorney's office and followed the good government guide and so based on that opinion, we had basically continued to assert that we were in compliance by attaching them and including them as an attachment. >> but you were aware that after the city attorney had issued that opinion, the sunshine task force said that opinion was wrong and wanted them to go into the body of the minutes. why did you continue to resist that? >> again, we basically went on the opinion and followed the city attorney's advice. all of the other commissions were doing the same thing it was not until your commission changed its practice that we followed suit. to do that. >> now, if a member of the public went to the library commission's website, it would get the minutes and it would also pull up the attachments? >> they are included as part of the minutes, that is correct. >> so that from the point of view of the public, the information which you are now proposing to include in the body of the minutes, to the public, it was a matter of just simply reading what was attached to the official minutes? >> that is correct. >> that is correct. >> thank you. >> mr. herrera, i also have a couple of questions. and so if a member of the public were to go on to the website and download the minutes, would the minutes, or would the 150-word summary be in the same document as the rest of the minutes or a separate document that would be attached to the minutes. >> i would defer to the commission secretary, i am speculating that they are part of the minutes, but i can verify. >> blackman, library commission secretary, yes they were all part of one document. so you stroll through the minutes and we actually put in the minutes where the speaker made his comments please see addendum for the 150 word statement. >> so in the library commission's minutes the speaker made a comment there would be a shorter summary of that speakers comments and a reference to later in the minutes where the full 150 word summary was provided. >> correct. >> thank you. >> any further questions for miss blackman? >> yes, i have a question of mr. hartz. yes, commissioner. >> have you reviewed the draft that mr. herrera says is going to be the form that the commission is going to adopt going forward in so far as including public comments? >> i have reviewed it yes. >> and assuming that they adopt it and implement it, does that cure your concern? >> no. >> why. >> because the similar simple fact is that they did else wise for two years, i would like to point something out on those particular minutes that you are seeing, up until these minutes another member of the public, mr. james chavy submitted 150 word summaries also and his remains as an addendum through december of last year. and their statements that they put it in the addendum and then noted in the thing that has changed, that has been so many variations, if you go back through and look through the notes, sometimes it was a blue numeral i, as he mentioned you had to click on that and once you clicked on that you could see my comment but you could not get back to the rest of the minutes. >> my question is if they adopt this, going forward n spite of all of your complaints about the past, i want it know whether this cures the problem that you believe existed? >> no. >> and the reason is that if you look at the two cases i'm talking about, mr. chafy's comments are listed as a summary of his comments provided, mine is listed as a statement read by. which is not accurate. i did read the statement, but that is not all that i said. and up until this set of minutes, they would add additional comments. they would put additional comments before me 150-word summary or after the 150-word summary or sometimes both. so basically they had been all over the place and for them to come up here and answer a question by one of your members and say this is the way that we have always did it and they have been all over the board. all of these are approved documents and if you go back and look at them, they have handled this in every possible way, that is different. now you are saying is this, you know, i think trying to make it sound like i am being unreasonable. >> no, i'm trying. >> what i am saying is they have not established a clear policy on how they are going to handle these because even in the minutes you have got they are handling them in two different ways. >> how are they handling them in two different ways? show me. >> saying that he read the following statement and if you go back to page number one, you see mr. chafes submission and it is proceeded with the following written summary as provided by the speaker a citizen and the content is never generated by or subject to approval of the verification of accuracy >> that is a copy, starting with the word stop over to the word check, at the top of of the second page, that is a verbatim of what the written statement was, correct? >> in which page are you talking about? one or three? >> that is page one, it says a written statement was provided by the speaker. >> right. >> and then it goes on and it was what appears to be the written statement starting with the word stop, right? >> yes. >> ending with the word check on page 2. >> yes, that is the entire 150-word or less statement. >> right. >> right? >> that is all that you are asking them to do, isn't it? is to include the statement itself, the written statement that
>> david popel in this instance i think the d p w have met and gone above and beyond to offer to meet with the complainant. it has the back project that was looking for some financial controls. i was also concerned that this particular complaint was addressed to both mr. new rue and was the department head at the time and might also be bifurcated to chapter 3 hearing and it wasn't calendared. you can deal with mr. lee tonight. i don't know if you need to recalendar that as a chapter 3 matter. even if however your intent is to dispose of it, i think you can only dispose of mr. lee tonight. i'm not suggesting we dispose of mr. lee, just the matter. >> i guarantee you are not disopposing of mr. lee. >> was he a department head at the time? >> my understanding was that he was in training, interim department head. this is not a violation. that's why it's under chapter 2. >> okay. mr. lee, are you here speaking for mr. nir u as well. >> i'm speaking for the department. i handle records and public request and even though given to mr. new rue to respond. >> was there any other public comment on this item? questions for mr. lee? mr. lee, i have got to say, it -- maybe i'm naive but it was shock to go me shock to to me there were no document for approval for the hundred thousand dollars projector an allowing it to go over by 3 percent. >> we were shocked too and that's why i explained to the task force and why it was being discussed to employees. in city government sometimes it does take time to get all the employees to buy in on what needs to change and that's what essentially happened. >> whose e-mails did you look through to see if there was any approval? >> the people that mr. nooim an asked. those are people in charge of the project. >> okay. any other questions for mr. lee? comments from the commissioners on this agenda item? >> it sounds like an exhaustive search was done and documents compiled and documents provided on cd's. sounds like there is nothing else. >> i agree. anything else? is there a motion to find that the respondents have met their burden and find no violation of 67.21 c and 67.21 e regarding this >> so moved? second? >> all in favor? >> aye. >> motion passes. the last complaint on our agenda tonight is 09-023. respondent lazar. i see mr. lazar and mr. clark. mr. lazar you bare the bear the burden. you have five minutes. thank you for your patience. >> good evening commissioners. i'm howard lazar director of the street lighting program and doing this for four-and-a-half years. anyway, i will take this, when i came here this evening, i handed out this portfolio to each of you so you can follow it with me please. i'm going to address each of the sunshine task force charges against me. the first charge is 67.21 b for failure to release information to mr. clark within ten days of receiving the public records request. i hardly agreed and at the task force hearing of july 26 and august 23 of 2011 my argument was to the task force members in a statement i have written and was read by a representative. in the statement i said "we state that the clarks are correct. do you to the oversight we did not respond to the question. we drafted a reprivate. we apologize for their error and wish to take this opportunity now to convey our response to the clark's questions. i did furnish those responses to the questions at both task force meetings." now moving on second charge which the 67.22 b for failure to release public information to mr. clark on a timely and responsive basis. in response to the first charge i have already stated that at 2 task force meetings i publically acknowledged and apologized for my failure to release information on a timely basis. however at the same two hearings, i took the opportunity to convey a statement read by representative my response to the questions. i have furnished you with my statement which was read at the two hearings and the statement includes responses to mr. clark's questions. who ill this public information was not released on a timely basis it was nonetheless released to mr. clark on a responsive basis by virtue of those two hearings. furthermore after the last of those two hearings, mr. clark, on august 29, 2011, mr. clark sent me an e-mail regarding his proposal for the designation of street spaces or hey street. i fully responded to the question on page 2 of the letter to mr. clark on september 13. you have a copy that have letter before you in this section. while admitting my failure to respond on a timely basis i did respond to mr. clark thoroughly and on a responsive basis in the two task force hearings related to the subject matter. then the third sunshine task force charge 67.21 e for failure to send a knowledgeable representative to the task force hearing. i disagree for the following reasons. no. 1, the city attorney had adviced me that it would be legal for me to send a representative even from a temp agency as long as they are responding to the resident. in keeping with the advice i draft a representation which was submitted. on july 2011 from me requesting her response to the drafted statement. i'm also directing your attention then i don't have much time to also see the attached statement which was thoroughly reviewed by the city attorney at two hearings. the same july 26 and august 23rd. in the city attorney's review of the statement deemed it to be accurate and thorough in the contents response and would fully -- do you want know continue or shall i stop. >> your time is up. you have rebuttal time. >> good evening. i'm the person who did start the street artist program for over 40 years. i'm trying to get spaces for that time. i wrote proposition j which was approved by the voters in 1974 and later an appealed by the ordinance. i want to dispute what mr. lazar just said. he did not make any statements at the july task force. in fact when our hearing came up i was in the middle of giving my presentation and his representative and himself left the meeting in the middle of my presentation and no statement was given by either of them at that particular meeting. i want to make you aware of what this was about that on the date of the spaces i have them there that were sent to the board of supervisors, it took 22 months before that, 22 months earlier. i had the art commission prove the resolution that went to the board of supervisors and took me 24 months before that where i presented the proposal to the commission arts commission. it took him 22 months to put anytime front it in front of the board of supervisors and he had been putting other spaces in front of the board of supervisors and i sent an angry e-mail to him saying it was 22 months before my bill was passed. how long is it going to take. at the board of supervisors meeting it gave him an opportunity to come up with a compromise. they came up with a suggested compromise and the item was put on the call of the chair. i left that meeting while thinking there was something in the works and i waited a year before i contacted mr. lazar and asked him what was happening. at that time i found out -- that's when i didn't get any response to him from him, i was asking, what's going on. have you heard from the valley merchants with regard to this proposal. what happened at that time that's when after i found out all this time later after going through the complaint and that you will stuff, i found out that the answer to my question was no, nothing has ever happened between the arts commission and the hayes valley merchants. so all this time i went through all these hearings, mr. lazar was present at the hearing but left in the middle of the hearing. all he had to do was sent me an e-mail saying nothing has ever happened. as a result of that, i went back to the board of supervisors, they told me after 30 days everything is dumped into the trash can and i asked mr. lazar to recalendar the item to the board of supervisors and he refused to reintroduce the item saying it wasn't part of the resolution. this whole time sense i have been waiting for this meeting with the board of supervisors which was over a year then i asked him a question then i had to go to the task force, the first hearing he left in the middle of it. we continued it for a month and finally i believe mr. man toes did state later on that nothing has occurred. so for all that time, all he had to do was tell me that nothing had occurred and i wouldn't have even filed a compliant at the sunshine ordinance task force. all i needed was an answer and i feel that the fact that he refused to let it even let me know after 30 days my proposal was going to be thrown in the garbage can was done deliberately so my proposal would be trashed and as of now i still have not been in front of the board of supervisors on my proposal. if you have any questions i will be glad to answer them. >> thank you. mr. lazar? rebuttal? >> well, you heard a history of an issue. but the question is whether or not i violated the sunshine task force. i would like to say that i'm furnishing you -- first of at all task force said in a fourth charge that i willfully violated the ordinance under section 634 based on inadequate responses and repeated violations of the sunshine ordinance and failure to comply with the sunshine ordinance. i'm furnishing you request that i responded from february 2010 to february 2013. i have also furnished you with the records of hours spent annually by me in research in response to sunshine request and prep for sunshine hearing. 227.55 hours and current fiscal year of 16.15 hours. i may have been technically in violation for failing to release information. while admitting to not responding on a timely basis. i did respond with a letter to mr. clark. i did not send a knowledgeable representative. i followed the attorneys advice. it's suggestive and contradictory provided to me by my city attorney and finally after respond to go request that were thoroughly received by the city attorney. i disagree with the task force finding that i have inadequate responses and a lack of intent to comply with the sunshine ordinance in the future, unquote. i would be more than happy to answer any questions. >> thank you. public comment on this matter? >> my name is robert clark. i'm a witness to the fact that mr. lazar did not stay for the meeting that he claims he was at. my brother was talking and he ran out of the meeting, took his representative with him and they never returned to the meeting. that's why the meeting was postponed for another month to give him an opportunity to be there. that it's an outside right lie. i don't know about his other question, but all the ones that my brother and i have filed against him, he's been found in violation. if he just responded to the questions we were asking. the representative, he kept sending to the meetings had absolutely no not knowledge on the issues and they told him not to come in anymore and they wanted mr. lazar himself to come to those meetings and for him to stand up here today and lie to you, if anything else i request that this commission listen to those two meetings continue this for another hearing. listen to those two hearings so you can determine for yourself that who is telling the truth here in front of this body. mr. lazar was asked when we tried to get this before spaces through the arts commission was the policy of mr. lazar to allow spaces to the board of supervisors if the merchant is opposed to him and he said no. his policy was that he only allowed spaces to go to the board if both the merchants in the street agrees to it. we waited 22 months. i think that shows a willful disregard. when we went in front of the board, mr. lazar t last second before they were going to vote on it, they withdrew our commission's request to have it voted on. we were force today wait a whole year because we were being told this new policy of proposal between the two of them were going to occur. so we had to give him some time and then we kept waiting for mr. lazar to tell us what's going on. wii we waited a whole year and that's when we filed this sunshine request. we didn't file an rdr. my brother filed the request, we gave him 14 days. they knew all the time that this proposal of the art commission and the merchants was dead in the water. at any moment. he could have told us. he willfully with hold that information. my name is paula davis. i can speak from the website. it it was as the clark brothers described. that's what i saw and i can also speak from personal experience. i filed request and they were never responded to. the response was to send now an employee of the arts commission who claims to have sent me records, could not -- didn't even come in with a file and didn't know anything about the records i requested. the defense was slandering me. that's what they do. now i'm accused of stalking lazar because they don't respond to e-mails. they don't pick up the phones. i went to speak to his boss, rebecca quill. one day she wasn't there. a couple days later i got on a trolley and now i'm accused not criminally because there is no basis to any of this. it's just what they do and i would endorse the clark brothers because i know them. they are telling the truth. >> other public comment on this item? any questions from the commissioners of mr. lazar or mr. william clark? >> i have some questions. mr. clark, maybe i can ask you first. i am looking at the e-mail that was included in our packet i'm not clear exactly how this -- it's page 32 of our packet which it looks like it's an e-mail to s o t s. it looks like this was the text here is yours at least in the middle. i'm looking particularly at the portion that says "we sent howard lazar the following e-mail on may 27, 2011. >> that's my complaint. >> right, but you are referring to they mail you sent to mr. lazar and it says, mr. lazar i'm not requesting any documents but i would like an answer to the following questions. do you see that? is that an accurate statement? >> yes. this is what i said. this is my e-mail that i was asking for public information because i didn't know whether he had any documents at that time. i didn't know whether or not there was anything that had transpired between the hayes valley merchants and the arts commission and i just wanted to know if something had gone on, if something had gone on between the two of them i would have requested further documents and i got no response to this at all. >> i guess i'm having a hard time interpreting this as a request for any documents that exist if you start off by saying you are not requesting any documents? >> i upside that. understand that. i wasn't asking for documents that i knew existed. i was asking for information contained in any documents that might exist at the time. because i assume they exist because i was told this was going to happen and i waited a whole year before i asked him this information. >> okay. any other questions for mr. clark? >> mr. gib ner, what do we do in a situation, i understand they can request records. can they request a written response to questions? does that qualify? >> the sunshine ordinance doesn't require that type of response. >> it does basically the answer is the sunshine ordinance doesn't require to you create a document in response to a request. it only requires to you produce documents that exist. >> what is the precedent for a situation where maybe there isn't an explicit but -- if there is a quote unquote sunshine request that is not seekg records, is there an obligation to respond to say, this is not an appropriate sunshine request or follow up with some kind of question? >> under section 67.22 departments must d.c. basically work with someone who is requesting oral information. >> because -- i also underlined this and see that all of you are careful lawyers underline i'm not requesting any documents parts because this isn't sun shine or public records request. listening to mr. clark now, he could have ended up in the same place, he could have said i like record if any exist. and maybe would have been told there are no responsive records. i don't like that pathway because we don't want to make members of the public have to write in legal ease or draft a public consent in order to get within the public records role. but we also and i don't know whether this is that case yet, we also don't want employees of agencies having to become the public library to answer every question. there is a reason you don't have to create documents. please do a research report for me. if there are existing documents are entitled to them on a certain basis. so while this could be misleading, i'm glad to hear mr. gib ner say there is a separate expectation that if somebody asks a question that you are supp
the statement includes responses to mr. clark's questions. who ill this public information was not released on a timely basis it was nonetheless released to mr. clark on a responsive basis by virtue of those two hearings. furthermore after the last of those two hearings, mr. clark, on august 29, 2011, mr. clark sent me an e-mail regarding his proposal for the designation of street spaces or hey street. i fully responded to the question on page 2 of the letter to mr. clark on september 13. you have a copy that have letter before you in this section. while admitting my failure to respond on a timely basis i did respond to mr. clark thoroughly and on a responsive basis in the two task force hearings related to the subject matter. then the third sunshine task force charge 67.21 e for failure to send a knowledgeable representative to the task force hearing. i disagree for the following reasons. no. 1, the city attorney had adviced me that it would be legal for me to send a representative even from a temp agency as long as they are responding to the resident. in keeping with the advice i draft a representation which was submitted. on july 2011 from me requesting her response to the drafted statement. i'm also directing your attention then i don't have much time to also see the attached statement which was thoroughly reviewed by the city attorney at two hearings. the same july 26 and august 23rd. in the city attorney's review of the statement deemed it to be accurate and thorough in the contents response and would fully -- do you want know continue or shall i stop. >> your time is up. you have rebuttal time. >> good evening. i'm the person who did start the street artist program for over 40 years. i'm trying to get spaces for that time. i wrote proposition j which was approved by the voters in 1974 and later an appealed by the ordinance. i want to dispute what mr. lazar just said. he did not make any statements at the july task force. in fact when our hearing came up i was in the middle of giving my presentation and his representative and himself left the meeting in the middle of my presentation and no statement was given by either of them at that particular meeting. i want to make you aware of what this was about that on the date of the spaces i have them there that were sent to the board of supervisors, it took 22 months before that, 22 months earlier. i had the art commission prove the resolution that went to the board of supervisors and took me 24 months before that where i presented the proposal to the commission arts commission. it took him 22 months to put anytime front it in front of the board of supervisors and he had been putting other spaces in front of the board of supervisors and i sent an angry e-mail to him saying it was 22 months before my bill was passed. how long is it going to take. at the board of supervisors meeting it gave him an opportunity to come up with a compromise. they came up with a suggested compromise and the item was put on the call of the chair. i left that meeting while thinking there was something in the works and i waited a year before i contacted mr. lazar and asked him what was happening. at that time i found out -- that's when i didn't get any response to him from him, i was asking, what's going on. have you heard from the valley merchants with regard to this proposal. what happened at that time that's when after i found out all this time later after going through the complaint and that you will stuff, i found out that the answer to my question was no, nothing has ever happened between the arts commission and the hayes valley merchants. so all this time i went through all these hearings, mr. lazar was present at the hearing but left in the middle of the hearing. all he had to do was sent me an e-mail saying nothing has ever happened. as a result of that, i went back to the board of supervisors, they told me after 30 days everything is dumped into the trash can and i asked mr. lazar to recalendar the item to the board of supervisors and he refused to reintroduce the item saying it wasn't part of the resolution. this whole time sense i have been waiting for this meeting with the board of supervisors which was over a year then i asked him a question then i had to go to the task force, the first hearing he left in the middle of it. we continued it for a month and finally i believe mr. man toes did state later on that nothing has occurred. so for all that time, all he had to do was tell me that nothing had occurred and i wouldn't have even filed a compliant at the sunshine ordinance task force. all i needed was an answer and i feel that the fact that he refused to let it even let me know after 30 days my proposal was going to be thrown in the garbage can was done deliberately so my proposal would be trashed and as of now i still have not been in front of the board of supervisors on my proposal. if you have any questions i will be glad to answer them. >> thank you. mr. lazar? rebuttal? >> well, you heard a history of an issue. but the question is whether or not i violated the sunshine task force. i would like to say that i'm furnishing you -- first of at all task force said in a fourth charge that i willfully violated the ordinance under section 634 based on inadequate responses and repeated violations of the sunshine ordinance and failure to comply with the sunshine ordinance. i'm furnishing you request that i responded from february 2010 to february 2013. i have also furnished you with the records of hours spent annually by me in research in response to sunshine request and prep for sunshine hearing. 227.55 hours and current fiscal year of 16.15 hours. i may have been technically in violation for failing to release information. while admitting to not responding on a timely basis. i did respond with a letter to mr. clark. i did not send a knowledgeable representative. i followed the attorneys advice. it's suggestive and contradictory provided to me by my city attorney and finally after respond to go request that were thoroughly received by the city attorney. i disagree with the task force finding that i have inadequate responses and a lack of intent to comply with the sunshine ordinance in the future, unquote. i would be more than happy to answer any questions. >> thank you. public comment on this matter? >> my name is robert clark. i'm a witness to the fact that mr. lazar did not stay for the meeting that he claims he was at. my brother was talking and he ran out of the meeting, took his representative with him and they never returned to the meeting. that's why the meeting was postponed for another month to give him an opportunity to be there. that it's an outside right lie. i don't know about his other question, but all the ones that my brother and i have filed against him, he's been found in violation. if he just responded to the questions we were asking. the representative, he kept sending to the meetings had absolutely no not knowledge on the issues and they told him not to come in anymore and they wanted mr. lazar himself to come to those meetings and for him to stand up here today and lie to you, if anything else i request that this commission listen to those two meetings continue this for another hearing. listen to those two hearings so you can determine for yourself that who is telling the truth here in front of this body. mr. lazar was asked when we tried to get this before spaces through the arts commission was the policy of mr. lazar to allow spaces to the board of supervisors if the merchant is opposed to him and he said no. his policy was that he only allowed spaces to go to the board if both the merchants in the street agrees to it. we waited 22 months. i think that shows a willful disregard. when we went in front of the board, mr. lazar t last second before they were going to vote on it, they withdrew our commission's request to have it voted on. we were force today wait a whole year because we were being told this new policy of proposal between the two of them were going to occur. so we had to give him some time and then we kept waiting for mr. lazar to tell us what's going on. wii we waited a whole year and that's when we filed this sunshine request. we didn't file an rdr. my brother filed the request, we gave him 14 days. they knew all the time that this proposal of the art commission and the merchants was dead in the water. at any moment. he could have told us. he willfully with hold that information. my name is paula davis. i can speak from the website. it it was as the clark brothers described. that's what i saw and i can also speak from personal experience. i filed request and they were never responded to. the response was to send now an employee of the arts commission who claims to have sent me records, could not -- didn't even come in with a file and didn't know anything about the records i requested. the defense was slandering me. that's what they do. now i'm accused of stalking lazar because they don't respond to e-mails. they don't pick up the phones. i went to speak to his boss, rebecca quill. one day she wasn't there. a couple days later i got on a trolley and now i'm accused not criminally because there is no basis to any of this. it's just what they do and i would endorse the clark brothers because i know them. they are telling the truth. >> other public comment on this item? any questions from the commissioners of mr. lazar or mr. william clark? >> i have some questions. mr. clark, maybe i can ask you first. i am looking at the e-mail that was included in our packet i'm not clear exactly how this -- it's page 32 of our packet which it looks like it's an e-mail to s o t s. it looks like this was the text here is yours at least in the middle. i'm looking particularly at the portion that says "we sent howard lazar the following e-mail on may 27, 2011. >> that's my complaint. >> right, but you are referring to they mail you sent to mr. lazar and it says, mr. lazar i'm not requesting any documents but i would like an answer to the following questions. do you see that? is that an accurate statement? >> yes. this is what i said. this is my e-mail that i was asking for public information because i didn't know whether he had any documents at that time. i didn't know whether or not there was anything that had transpired between the hayes valley merchants and the arts commission and i just wanted to know if something had gone on, if something had gone on between the two of them i would have requested further documents and i got no response to this at all. >> i guess i'm having a hard time interpreting this as a request for any documents that exist if you start off by saying you are not requesting any documents? >> i upside that. understand that. i wasn't asking for documents that i knew existed. i was asking for information contained in any documents that might exist at the time. because i assume they exist because i was told this was going to happen and i waited a whole year before i asked him this information. >> okay. any other questions for mr. clark? >> mr. gib ner, what do we do in a situation, i understand they can request records. can they request a written response to questions? does that qualify? >> the sunshine ordinance doesn't require that type of response. >> it does basically the answer is the sunshine ordinance doesn't require to you create a document in response to a request. it only requires to you produce documents that exist. >> what is the precedent for a situation where maybe there isn't an explicit but -- if there is a quote unquote sunshine request that is not seeking records, is there an obligation to respond to say, this is not an appropriate sunshine request or follow up with some kind of question? >> under section 67.22 departments must d.c. basically work with someone who is requesting oral information. >> because -- i also underlined this and see that all of you are careful lawyers underline i'm not requesting any documents parts because this isn't sun shine or public records request. listening to mr. clark now, he could have ended up in the same place, he could have said i like record if any exist. and maybe would have been told there are no responsive records. i don't like that pathway because we don't want to make members of the public have to write in legal ease or draft a public consent in order to get within the public records role. but we also and i don't know whether this is that case yet, we also don't want employees of agencies having to become the public library to answer every question. there is a reason you don't have to create documents. please do a research report for me. if there are existing documents are entitled to them on a certain basis. so while this could be misleading, i'm glad to hear mr. gib ner say there is a separate expectation that if somebody asks a question that you are supposed to try to answer it. the answer can be i don't know but i will look if you file a sunshine request or -- gee i don't think so. >> what's the provision for 67.22 that c? >> i think the entire section deals with response must respond for oral information. a. the b the role of that person is to provide information in a helpful and timely way and c, that person does not have to sit down and have a lengthy discussion. i think it does not require to respond if it takes more than 15 minutes to provide the information. >> okay. but this is for oral information. not a record. >> that's right. as i mentioned earlier sunshine ordinance does not require the city to create any records. >> okay. i understand. >> if i let him speak am i opening up public comment. >> you can reopen public comment. i maybe able to help you on this. >> no. i understand. it was meant to be a joke. it's not nearly as funny a the 1:0:30. >> just to refer you to section 20 b public information is defined there as the content of public records in public records act whether provided in documentary form or oral communication and doesn't include software. i would perhaps interpret even if mr. clark wasn't specifically requesting any documents to the extent that there was information contained in a document that's responsive to his inquiry and to the extent this was a single question and not interrogatories that if the department had information in a specific document, if they had records to produce and responsive to that question, they could have done so. i don't have a strong opinion on the this case that's why i didn't speak but i think there are other ways to interpret the questionch >> i don't think there is any doubt whether they provided the records. the question is to a non-document question. does all of this kick into gear if there aren't document and documents aren't what are sought whether it's just an answer where the person would say we've never done that or we have no such documents or we didn't take it up. >> you opened public comment again. >> she's already spoken. >> i believe what you adidas as opposed to the last item. you allowed him to speak. as for the last item you gave each person another 3 minutes. i would say public comment is closed. >> it can be at your discretion. >> i will give you an extra minute. you've already spoken but i will give you an extra minute. >> you can see in mr. lazar's presentation is that not only he's trying to justify to you his actions by giving i a packet and explaining to you the amount of hours he's spent, the fact that he's responded to every sunshine request, it's quite the opposite. and in fact he will come out to the stroo it street in the guise of doing an inspection to sunshine request which is really bad tor a street artist and listen to that >> since you opened a public comment, i'm requesting another minute. we asked for public information. if the employee or the director of the records knows the answer to that public information or can get it within 15 minutes they are required to give that information. mr. lazar has known that answer to that question because he claims he worked with the hayes valley merchants to create this new program between the merchants and the hayes valley. he deliberately refused to give us that information within the time period required by the sunshine ordinance. it's a willful refusal. he knew it at the time and he decided not to tell us that information. it's a public information request. i don't need to ask for documents. >> yeah. mr. lazar, i have a question for you as well. >> to clarify the public comment is now close. >> public comment is closed an will not be reopened on this matter. i have a question for you. >> why did you run out on the meeting? >> this you for asking. they are correct. i was with the representative and i suffered an asthmatic attack and i had to leave. he left with me. i wrote the next day to the task force apologizing for that and they have my letter on file. >> okay. >> was the item continued to the next month? >> i believe that's what happened. >> did you attend the meeting the following month? >> no. other id the representative attend with the script that i had written and looked at by the city attorney. the same script that would have been read that first month. >> why did you not attend the meeting? >> because i didn't trust my nerves at that meeting and i didn't want to suffer another attack. >> no questions for mr. lazar? >> no. >> comments? from the commissioners? any points on this item? >> when i first read the complaint i thought there might be an issue because there