cullman and louise hirschfeld cullman. judy and josh weston. joyce b. hale, in memory of miriam and ira d. wallach. cheryl and philip milstein family. bernard and irene schwartz. rosalind p. walter. corporate funding is provided by mutual of america. designing customized, individual and group retirement products. that's why we are your retirement company. additional support is provided by and by the corporation for public broadcasting and by contributions to your pbs station from viewers like you. thank you. from the tisch wnet studios in new york, hari sreenivasan. >> good evening. thanks for joining us. after a week of unsuccessful peace talks the syrian military bombed and killed at least eight people. this video is obtained by reuters which was captured on social media. the news agency said it could not confirm the awe then disty. ban ki moon urged secretary of state john kerry and sergei lavrov to press for a political solution to the war in syria. the 3-year-old conflict has claimed 130,000 people. at that same conference, kerry called on russia to let ukraine choose its own political path. they backed away from closer ties to the european union under pressure from russia. sparking huge and violent protests. >> the vast majority of ukrainians want to live freely in a safe and prosperous country and they are fighting for the rights to associate with partners who will help them realize their aspirations and they have decided that that means their futures do not have to lie with one country alone and certainly not coerced. >> just one day before national elections, there was a flare-up of violence today in bangkok, thailand. journalists and others scrambled for cover after gunshots rang out. at least three people were reported wounded. at least 14 people are dead and many are missing after a volcano erupted today in western indonesia. mt. sinabung spewed hot rocks a mile into the air. forcing the evacuation of tens of thousands yesterday. villagers who had fled the area yesterday returned home thinking it was safe. in australia, demonstrations against a new program to shoot sharks. thousands gathered across the country said it was inhumane. the sharks caught longer than ten feet will be kill and the plan went into effect following seven fatal shark attacks during the past three years in western australia. new york city's former mayor michael bloomberg has a new job. he was named as special envoy for the united nations, responsible for working with cities around the world to combat climate change. during his 12 years in office, bloomberg launched an ambitious plan to curb carbon emissions. the city's green house gas emission reportedly have dropped 19% since 2005. from montana tonight, word that the catholic diocese in helena has filed for bankruptcy. this after a $15 million settlement of a lawsuit alleging that priest were guilty of sexual abuse and that the church officials had covered it up. helena is the 11th to file four bankruptcy since 2004. and there's potentially promising news for the blind. adult stem cells taken from the donated eyes of dead people restored limited vision to completely blind rats. researchers believe the cells could eventually help people with macular degeneration and retinitis pigmentosa. human trials are expected to begin in three years. three there's a new and potentially important development in chris christie. for more on that, we are joined by michael aron, the chief political correspondent for wjnt news. so what happened yesterday and why is it so important? >> late yesterday, david wildstein, the former port authority official at the center of the lane closures through his attorney asked the port authority to pay for his legal defense. something they had said they won't do. in the three-page letter asking the port authority to pay for his legal defense, the attorney writes, evidence exists as well tying mr. christie to having knowledge of the lane closures during the period when the lanes were closed contrary to what the governor stated publicly. basically, accusing the governor of having lie and when people first heard this they thought the governor is going down. he lied. but i went back to the transcript of the governor's press conference on this 3 1/2 weeks ago -- >> two-hour press conference. >> and 26-page transcript, on page 5, he says i knew nothing about this. until it started to be reported and even then i was told it was a traffic study. it was in the papers and wildstein said he knew about it during the closures that could have been as late as thursday. christie is saying i learn about it on friday. i don't know that they're really that far apart in what they're saying. while the tabloids in new york say gov, you're lying is that such a big lie? >> okay. this defection, i mean, people will attribute different motivations for wildstein, saying he'll get a more lenient sentence if he turns on the governor. are there more in the inner circle? >> there are. he's clearly looking for immunity. this is the fourth time he or his lawyer have signalled he would like to be immune from prosecution and he has more to say. he's looking for help with his legal bills that are going to be considerable. at the same time, yesterday bill steppian, the former campaign manager through his attorney indicated he won't comply with the legislative subpoena either for documents or testimony. he'll take the fifth. and bridget kelly has changed lawyers has week. going from a -- someone who seemed to be close to chris christie to a much more bulldog, aggressive democratic leaning white collar defense attorney, some say the best in the state, michael prichly. they might have a deal they would like to present to the u.s. attorney's office. >> and wildstein has a long history with christie. >> they went to high school together. chris christie and david wildstein went to volunteer for tom kean, sr., running for governor in 1977. the governor said at his press conference this notion that he's my childhood friend, my high school friend is way overblown. i was class president and an athlete. i don't know what david was doing. but what's been lost in all of this is that for the last ten years, david wildstein ran a website, political website and i can't imagine that chris christie didn't communicate as u.s. attorney with david wildstein quite a bit to get the message out about the various undertakings that he was behind. all those ten years he was building his name and his brand. >> so finally, there are multiple investigations underway, and one looking at sort of bridge gate. another one looking at whether the governor used sandy funds in forms of retribution or as a reward for supporting him. where are these investigations? what's the pace of them? >> they're going to go slow it feels like. i guess another big revelation or some bombshell piece of testimony could speed things up. but the legislative subpoenas the first round to 18 people and two organizations the governor's office and his campaign community are due on monday. i imagine it would take the staff and the leads of that committee at least a week or ten days to sift through that, decide what they want to release to the public. the u.s. attorney we learned yesterday through indirect means is looking at both bridge gate as we call it and the sandy recovery. the use of sandy funds. they have impaneled the grand jury and that process could take months. >> michael aron, thanks so much. >> thanks, hari. and now to our signature segment. while the super bowl showdown is about 24 hours away, and there have been concerns all week about counterfeit tickets and possible cold weather, the tri-state area has been preparing for something else. an increase in prostitution and sex trafficking. just this week the nypd made several arrests for a high end escort service that aimed to deliver what they called party packs including drugs and prostitutes. while critics contend that there is no measurable spike in such activity around big sporting events, victims and those who work with them tell a different story. in this church in montclair, new jersey, only nine miles away from where the game will be played tomorrow, sister pat daly has a different concern about the super bowl -- protecting young women she believes are being exploited by sex traffickers. >> people don't realize the underside of the celebrations. we see spikes of advertising for sex trafficking and prostitution in and around large sporting events. >> one so-called super bowl week special we found online this past week offered customers a chance to get out of the freezing weather and get warm and cozy with me. another from someone calling herself a new barbie in town and calling herself an nfl super bowl secret promised satisfaction is always guaranteed. sister pat says traffickers take advantage of the increased demand for prostitution by bringing in girls and some boys from across the region. the effort to control trafficking at super bowls is actually nothing new. for the past three years, starting in dallas in 2011, nuns and other activists have mobilized to raise awareness of sex trafficking around the game. especially of minors. >> anyone who was involved, who's 18 years and younger, is going to be a victim of human trafficking. certainly we're not going after prostitutes. that's not what we're about. what we are trying to do is focus on who are the people who were really -- who are really being held captive? who are -- who feel trapped? >> the fear and the coercion is what really holds someone back from doing what they want to do. >> danielle douglas who was profiled in a recent documentary about sex trafficking called "tricked" claims she knows firsthand about the problem. >> when he was like beating me up, i was right here. >> at the age of 17 and about to start her freshman year of college in boston, she was befriended by an older man who dumped her on the street without belongings and demanded she prostitute herself. when she didn't, she said she was severely beaten. >> the way that he treated me got progressively worse. so he was very violent and he would beat me all the time. he would also verbally abuse me. he kept me on a very short chain and made sure that i was always right next to him. unless i was with a john and that's like part of their manipulation tactic, to keep you very, very close and not let you have any time to yourself. i had sleep deprivation, food deprivation. >> by her account, she was held for two years and routinely forced to turn tricks at big sporting events. >> i was forced to go to certain areas when there were events like celtics playoffs, things like that. big games or big concerts. things like that as well. to be in the area of those events where it was known for people to go, after those event, bars, restaurants or hotels. there's alcohol. there's usually large groups. and, you know, it's a form of entertainment. they're with their male friends. they're looking for something else to continue on after their main event. and this is what happens. people know that. the pimps know that. so they will direct the people under their control whether it be men or women or girls or boys to those areas. >> and that's why with the game fast approaching, sister pat and 400 volunteers who work with her from connecticut to philadelphia have been reaching out to hotels from small motels to big chains, asking their cooperation in blocking sex trafficking from their lodging. they're asking hotels to post missing children's flyer. >> we are going around to all the hotels in the area and we're asking them to at least keep this in their office so that they can look at images of the girls and see if they recognize anyone. >> they're also asking them to post the national hotline in hotel rooms, and encouraging them to train staff to recognize the red flags of trafficking. >> they're certainly asking people to be watchful of underage children. and then anybody who might seem to be coerced. and it's really a sense of so many -- some of the stories we have heard from people in -- on staffs of hotels. say, yeah, we have this gut feeling. well, now we're trying to train the gut feeling so that the front desk knows what to do or the people in housekeeping they certainly know what's going only in the hotel rooms. >> the anti-sex trafficking campaign is part of a larger effort. she's the executive director of the tri-state coalition for responsible investment which promotes corporate responsibility. >> thank you so very much. >> their message about sex trafficking seems to be getting through. the american hotel and lodging association which represents more than 50,000 hotels, motels, lodges and inns recently developed a trafficking training program. the association gave us a statement, saying all employees are expected to comply and are encouraged to alert the authorities if there's suspected trafficking in their hotel. while some dispute that sex trafficking actually spikes at sporting events like the super bowl, sister pat believes attention surrounding the game presents an opportunity to publicize the wider problem. and it is enough of a concern that authorities in new york and new jersey have focused attention on it. in the days leading up to tomorrow's game, new york city police reported a jump in prostitution arrests. some following from fake sex ads posted by police. authorities also cracked down on a sex ring that they say had been under surveillance for months. authorities said they decided to act now in the hopes of disrupting any parties that might have been in the works for the upcoming super bowl weekend. >> while we will engage in operations that we're going to apprehend persons for prostitution, every twist and turn of that process we are going to just campaign to see if there's a potential to that person being a victim of trafficking. >> the issue of sex trafficking came up at a recent security briefing for this game. >> in this area, trooper, local police officers, county police officers, have been trained to recognize this activity and of course of most importance is whether children are involved in the trafficking which is obviously a very grievous crime. so we are looking to interrupt this activity where and when it occurs. and we're also not just looking to make necessarily arrests although the traffickers themselves, but we're looking to rescue some people who are trapped in this lifestyle. >> danielle believes the efforts of sister pat and others are starting to pay off. because of heightened awareness among law enforcement officials and business leaders. but she fears the gains could easily be lost. >> the moment we decide to stop causing awareness, the pimps will go back to taking their people that are under their control to the events. >> a thought echoed by sister pat who's already looking ahead to next year's game. >> we're looking at a time today where human beings are treated as commodities, and so we're going to continue to be working together long after the super bowl leaves and moves on to arizona. >> as our report mentioned, there is an around the clock number to call to report sex trafficking. the national human trafficking resource hotline can be reached at 1-888-373-7888. operators can take calls in more than 100 languages. we asked the nfl about sex trafficking and the league issued a statement saying it works closely with federal, state and local law enforcement to ensure that the super bowl is a safe environment for the host community and the fans who enjoy the game and the celebration. meet the filmmakers behind "tricked" a documentary about human trafficking. visit our website. during his state of the union address earlier this beak, president obama unveiled a plan designed to help americans save for retirement. something he called a myra. for more on this, we are joined by the correspondent for real clear politics. first of all, what's the problem that the administration says this is going to address? >> well, the administration like many people, very worried that many workers in the united states don't have any option through their workplace to save for retirement. and in fact, are not putting money away for retirement and will find that social security isn't enough or that they should have been looking for private options like individual retirement accounts. so as part of his executive initiatives, the president with the treasury department finished a new pilot program, get it up and running, use a private financial official as the administrator, but give millions of workers who don't have options for their employment to save in little microaccounts. very risk free. they'll be low returns, but it will be very safe. and they're describing this as a way to almost have a training or beginner savers account that would allow workers to get more used to putting money away for retirement and accrue enough they could roll it over into regular ira that we're used to where we choose the funds we want the invest in. >> one of the points we're hearing is that this something that employees would be something to opt out of, than in. >> no, the president is saying he'd like congress to take up a separate legislative initiative that would be called the opt out. it's an automatic ira and congress is a little resistant that idea because they're concerned it would require employers to sign up their workers. and they'd prefer a -- especially republicans it be a voluntary idea, continuing the way we're doing it now in the retirement system. but the president is saying there are many studies out there that suggest that workers are much more likely to put aside money for retirement if they're automatically signed up for an account through their workplace and then they have the choice to opt out. and there are many academic studies that show that we overcome our inertia about saving if someone actually starts to execute it for us. so without congressional support, the president is saying he wants to create this little starter saving account, the my r.a. and to encourage workers to think of payroll deductions automatically with their employers and they would accrue money in a very small way and get more used to saving. >> briefly, how do they know how many people would sign up? >> very good question. and they don't know. they have some -- in the administration some ballpark estimates, but they don't know behaviorally how many workers would be interested in this, how many employers will make this an option to do the payroll deduction. how well they'll be able to spread the word this is available. so they're not estimating how many other than to say many millions they hope after the pilot program. >> all right. thanks so much. >> thanks. this is "pbs newshour weekend" saturday. >> and now to our viewers like you segment. your thoughts about our program. >> every day, hartman staff weighs and records the amount of food wasted when preparing meals. >> our piece last week ear new entrepreneurial efforts about food waste was well received. we were tweeted, it's encouraging to see more mainstream coverage of addressing the food waste challenge in the u.s. on the newshour website, brent crocker wrote, what a great piece on food waste in america. i'm guilty and sickened by the food we throw away every day. i'd love to see more programs to compost and recycle the food we put in our landfills every day. i believe that the food giants would make a huge difference if we could implement a composting program within them. but jim gordon wrote, composting is admitting defeat in most cases. let's work to prevent waste to the point composting is the only salvage option. there are too many working poor out there. in japan, farmers put up a self-service shack to offer cheap or free cosmetically challenged foods to the public. >> they also measure the waste from untouched leftover meal. >> a number of you told of local efforts to curb the food waste. the big stores here in northern indiana give the food that's nearing the sell by date to the food bank. therefore i believe the food bank and pantries should implement a compost program so any food left over can be composted. there are many unity community gardens that could easily take on the task of composting for their local area. on facebook, steve williamson wrote, it's just stupid what we toss. all of that could be going to making soil. and you know what soil is good for? growing food without the need for tons of chemicals. join us tomorrow on air and online. from hawaii, a get tough program that's keeping probationers out of prison. >> i thought of the way i was raised, the way my wife and i were trying to raise the sons and if there's misbehavior, you do something immediately. >> that's it for this edition of "pbs newshour weekend." i'm hari sreenivasan. thanks for watching. >> "pbs newshour weekend" is made possible by lewis b. cullman and louise hirschfeld cullman. judy and josh weston. joyce v. hale. in memory of miriam and ira d. wallach. the cheryl and philip milstein family. bernard and irene schwartz. rosalind p. walter. corporate funding is provided by, mutual of america, designing customized, individual and group retirement products. that's why we're your retirement company. additional support is provided by and by the corporation for public broadcasting. and by contributions to your pbs station from viewers like you. thank you. tonight... jeremy schaap: he is the quintessential olympic hero. margaret macmillan: hitler's script was the triumph of the aryan race, the triumph of nazi germany. louis zamperini: after winning all of those gold medals, he expected the whole nation to love him, and here the greatest athlete in america is being treated shabbily. "jesse owens," on american experience. captioning sponsored by liberty mutual, the alfred p. sloan foundation, the corporation for public broadcasting and viewers like you. nasa announcer: liftoff! the clock is running. pilot: they have mass casualties up here. ringside announcer: schmeling is down!
is so ironic sue hesser spoke to me and said i need these conditions and people said we need these conditions. i would say sue, don't worry so much. and now here i am saying, she was right. we need these conditions. we need a condition that requires the purchasers the lessees of these spaces that don't have lawful use of those sites. i think that closes everything. please come to the marsh. it is such a great resource. my daughter has been involved for the last decade at the marsh. i wouldn't send her anywhere else. thank you. >> miss gallagher, i have several questions. how would you characterize the acoustical capacity of the marsh's building? >> i'm sorry, i didn't get that? >> how would you characterize the building that the marsh is in in terms of it's ability to lock sounds from the adjacent properties? >> it's in pretty sad shape. we wish of were better. this is a non-profit organization. it puts just about every cent it has into providing these sliding scales and free services to the community. we need a lot of money. >> one of the comments made by the permit holder was that this used to be a nightclub? it was forced to have provided a number of different acoustical solutions to reduce it's nuisance value? >> i think stephanie can speak to that. >> i don't know too much about that. i think the acoustical done by my office is some corkboard. that's about the extent of it. >> have you done acoustical analysis on your building? >> no. >> this list that you have, is this list combining the other appeals issues or is it just your issues? >> we have worked cooperatively with the liberty hill people. they have let us take the lead on the sound conditions. there is nothing on the sound conditions that ask us for. does this meet what they would like to see? no. i don't believe it conflicts with anything that they would like. >> okay. their list of issues is totally separate from yours. >> i wouldn't say that. they said the marsh wants this and they want others and we sat down to make sure that doesn't happen. i don't see any item that they have talked about and we've talked about in any confliction of any whatsoever. >> your only meeting with the developer in the last few days. >> the developer did come out to the site one time during this process and it resulted of his filing the complaint about the marsh's draining situation. >> this came out on the meeting on monday? >> yes. >> thank you. >> thank you. we can hear from the appellant now in rebuttal. >> thank you commissioners, steve williamson behalf of the other appellant alicia gamez. they skipped the indemnitial review. i gave it to the zoning administrator. both the permits were filed and the applications were filed in 2010. they were allowed to skip that to get preferential treatment on that. look at the numbers in front of you. planning commission took this very seriously. they imposed six conditions. the conditions were ignored. the community liaison was support to be done before the permit issue. the permit issue, the community liaison was appointed from september 19th after the hearing here and i got a complaint. i got a letter saying i'm appointing myself. and nothing was done. the second condition, the liaison and the staff was supposed to work to step down this project on hill street. that's what it says. it was ignored. now, he was right. the planning commission could have imposed some very concrete form of step down. you can correct that mistake. you can do that today. you can impose that step down. since the planning commission commission said this building out to be step down. don't let these conditions fall by the way side. that's wrong. this is the step down. reduce the 50 feet to the historic district. this is the second condition that the planning commission -- i hope you weren't convincing by the compatibility argument. the building is 100 percent maxed out. we cut it back and we did that and that. it came forward first and it violated the planning code and any other sort of things. this is maximum envelope. don't forget that. second, the developers graphic proves incompatibility. what it tells you is the prevailing street block pattern. with one exception, none of the buildings pointing to can be seen from the site. there is hundreds of feet away. the code says look at the building. that's what the code says to look at the compatibility. this is not compatible. you can't be two or three 3 stories taller than any single adjacent building and call yourself compatible. if that's the case, the word has no meaning. here is the graphic, the view. this is the plan. is that compatible. no. absolutely not. anyone that says that is lying. so, as john barbie said, the neighbors feel that they were fooled by the eastern neighborhood plan. there are lots of promises in there about protecting historic resources and protecting existing neighborhoods. i outlined those plans on page 8 and nine. there is a specific zoning policy that says among streets analysis there is low with smaller spaces. you don't get smaller with hill street. hill street is smaller. it's wrong to have that kind of building. don't forget that the marsh also is a historic resource. it's recognized by the state of california as a historic resource to be protected. this separates the historic marsh building and the other historic buildings they promised that they would not accept it. as mary said make this part of the nsr. take that brave step. i reached out to find out if that could be done. there has been no response. but we would like you to do that. if they want to fight about it later, then let them do that. they promise that, make it enforceable and make it a condition. thank you very much. >> the step down on the graphic, would that be for the client? >> yes. >> i'm trying to understand the design and the scale piece. okay. >> i think we can take rebuttal from the permit holder. thank you commissioners. i will keep this brief. i know we have heard a lot this evening and you have other items on the calendar. first of course the project sponsor respects the mark in the institution in the surrounding neighbors and has no interest in hurting the neighborhood. we would like to reiterate the sponsor has worked in good faith to address the neighbors and already agreed to a broad range of activities to prevent noise impacts to the marsh theatre and reduce any impacts on the what could be done under the code and construction liasons there when the work begins. there is no construction on-site. there is no reason for construction outreach. outreach has been part of the appeals launched on the property. mandatory disclosures and will have sound traffic, other impacts associated with entertainment uses in the city with multiple unit are aware of the neighborhood in the existing conditions. they required with the marsh to avoid construction. agreeing to cc and r's specifically to increase the sound structures which we heard about earlier. as is this project is designed to prevent noise impact to the marsh and protected as an institution and we feel it's quite effective. second, i want to stress again the project here is 100 percent code compliant. it is really proposed a smart development containing new development consistent with other city plans. third, intelligent minds can agree this is a tragic style that is without creating a false cents of structure which is one of the interior standards for the historic buildings although it doesn't contain a historic building. the project has been designed and reviewed by the planning department, the planning commission and the historic preservation commission. where they are going to ask that you deny this appeal, but we are available to answer any questions that you have. >> what is the, how many units would you lose to do a step down ? >> we estimate around four. this is a complicated design question for something on the spot like that. >> why would it be on the spot? is this the first time you heard it? >> the neighbors presented this idea to me 2 days ago. first it was chopping up two floors, 4 units, large ones. this latest proposal to make a 50-foot building now would eliminate a whole floor because the sealing -- ceiling was 6 and not acceptable. chopping it back in the rear, i would like to come forward as witness to the planning commission hearing to say this was a difficult point for the commission to bring forward and would not make a hard cut to the building which was a very conscious that this was a very small project. this was not a large expensive view on the scale. cutting on one chunk to basically up an appease the neighbors. they did specifically put in that condition to be mindful of not reducing units for that reason. what happened during that, after the hearing and when it was approved. we went back and worked out and took a whole bank fof bays out of the project design which came up to the rear and changed materials in the rear to create a lighter top, darker bottom which helps lighten the mass this and affect the mass transition. >> i have a question for him before he sits down. and i have a question for you. at this point the documentation has not been done. you are applying for a site permit. >> correct. we have them under way. >> to what the level of sound installation would you design the party wall between your property and the marsh. >> it's actually mentioned by the acoustic engineer. >> to what level. >> this would be the highest level to sound transition to 45 -- the acoustic engineer could speak to that. >> i'm accept 45. the issue here is as you indicated the planning commission had some generalized comments. if we are going to deal with anything here, i want to hear some specification. at what level would you design the level of sound. >> right now if we take a look at the 8-inch wall plus the stairwell, quick estimation is that we are probably well above 70 stc. it's a very high level of sound at the marsh. >> except at the elevator. >> meaning that if there were noise in the elevators? >> yeah. the elevators are typically designed to 1 hour fire rating. >> yeah but 1 hour. i don't want to debate the technical aspects. we'll decide. >> counselor, i have some further questions for you. how do you in legalese define legislation in force at the time? >> it's, that's a good question. i would say this is language written by the appellant. i would assume that's language at the time certificate of occupancy is issued. if there is legislation at the time that would exist that would carry out the two actions, the conditions of approval then it would apply to the project. >> did these two conditions apply at this time? >> no. we spoke with mta as well a couple weeks ago and the issue is raised with regard to residential parking and were told that they didn't have a means of enforcing it. >> i have another question for you but i can't remember right now. anybody else? >> on no. 6 to commissioner fung's questions. what about enforcement? >> as i understand we can use the planning department as well the way in which bmr units is based on the lottery system and the rules of that lottery system are set by code and the housing and procedures manual i believe that would have to be altered. >> it's been asked that you will have on-site affordable units. >> good evening madam president, members of the board, thank you for having us back. your question? >> i'm asking the question relates to the affordable units on-site that has been raised by the appellants as a concern that the affordable units will not be on-site? >> the way it set up now. the nsr is recorded and our intention is to build them on-site, there is a possibility according to law that is discussed here that they could be bought out at some point, but that's not our intention right now. is there a guarantee that they won't be bought out? no. my intention is to build the units and * they have been approved. >> okay. thank you. >> anything further? >> there were some comments about structures and resources. as you know that issue is covered in ceqa and has been thoroughly vetted in the planning commission and board of supervisors and there was a significant impact on the historic district and any historic resources nearby. just to be clear the marsh building was a state designated resource. i'm not sure about the source of that. the documentation i have available to me does not indicate that it's recognized as a historic resource on the national register. also just additionally just from additional perspective as was mentioned one property on hill between the subject property where the historic district begins that property is 50 feet wide. the actual 5 story portion of the proposed building is approximately 71 feet away from where the historic district is where that side of the street begins. also, again just relevant to that street and there was some discussion about small streets and certain protections that does have a right of way from 40 feet or less. that is the benchmark for what is a small street from the code and in those situations there are specific requirements for light angle where there were no lights into those alleys, hill street, the right of way is 50 feet. even though it's a two lane it's a very small street that serves very basic street. valencia street is 90 feet to give you a relation to how the building related. regarding the community liaison again, i don't want to touch on this too much because, but again, the purpose of the community liaison in our standard condition and this condition is not to actively engaged in the community in any on going basis about their issues. it designed for a contact for the broad check for the people that have concerns, that is the person they contact and there is the point of coordination to deal with those issues as has been said. it seems like it's possible that the community liaison was established or determined after the issue ance are the permit. however there were still doubts. i want to clarify the role in terms of their being a passive role as an active role in terms of the community engagement. and lastly, regarding affordable housing, it is true that when we draft motions for projects, how a project is satisfying affordable homes, the planning commission cannot require a sponsor to meet his affordable housing obligation through one specific criteria. they are available to take advantage of any criteria available to them under the haw -- law and the commission is aware of that under approval. there is reference on how the the proposals is to that. also mentioned the currently the lottery system to affordable units there is a priority system and they are multiple things that go in that. there is legislation at the board of supervisors this week about allowing tenants who have been in the ls act. however the lottery has discouraged the city from using any kind of geographic metrics because it opens up to the legal challenges and any specific or certain classes of people that cannot be exclude or included. that's why the city attorney said we can't give specific treatment to affordable houses because it creates a pretty serious legal issue there. obviously, that's a pretty good issue. i'm available for questions about anything else including the affordable housing issue. >> there was a problem with the property starting at 16-unit and that never would have been approved. can you comment on that >> i have not seen anything for that design. if they can fit 16 units in this, then yes it could have been permitted. if that required variances, i can't say for sure that would not have justified and obtained those variances. it is new construction on a usable lot. if it requires some type of hardship. i can say it may not have been highly likely they get a lot of variances on that. if that project would have been approved or if that project would have or not been awarded. >> just to biggy pack on that, if you can say about this a little bit. because the zoning changes the density calculation which used to be based upon a square footage of the site divided by the factors of how many units are allowed there. this one you are allowed as many units as you want with the height limit but some have to be larger units? >> the theory behind is and it
everything. please come to the marsh. it is such a great resource. my daughter has been involved for the last decade at the marsh. i wouldn't send her anywhere else. thank you. >> miss gallagher, i have several questions. how would you characterize the acoustical capacity of the marsh's building? >> i'm sorry, i didn't get that? >> how would you characterize the building that the marsh is in in terms of it's ability to lock sounds from the adjacent properties? >> it's in pretty sad shape. we wish of were better. this is a non-profit organization. it puts just about every cent it has into providing these sliding scales and free services to the community. we need a lot of money. >> one of the comments made by the permit holder was that this used to be a nightclub? it was forced to have provided a number of different acoustical solutions to reduce it's nuisance value? >> i think stephanie can speak to that. >> i don't know too much about that. i think the acoustical done by my office is some corkboard. that's about the extent of it. >> have you done acoustical analysis on your building? >> no. >> this list that you have, is this list combining the other appeals issues or is it just your issues? >> we have worked cooperatively with the liberty hill people. they have let us take the lead on the sound conditions. there is nothing on the sound conditions that ask us for. does this meet what they would like to see? no. i don't believe it conflicts with anything that they would like. >> okay. their list of issues is totally separate from yours. >> i wouldn't say that. they said the marsh wants this and they want others and we sat down to make sure that doesn't happen. i don't see any item that they have talked about and we've talked about in any confliction of any whatsoever. >> your only meeting with the developer in the last few days. >> the developer did come out to the site one time during this process and it resulted of his filing the complaint about the marsh's draining situation. >> this came out on the meeting on monday? >> yes. >> thank you. >> thank you. we can hear from the appellant now in rebuttal. >> thank you commissioners, steve williamson behalf of the other appellant alicia gamez. they skipped the indemnitial review. i gave it to the zoning administrator. both the permits were filed and the applications were filed in 2010. they were allowed to skip that to get preferential treatment on that. look at the numbers in front of you. planning commission took this very seriously. they imposed six conditions. the conditions were ignored. the community liaison was support to be done before the permit issue. the permit issue, the community liaison was appointed from september 19th after the hearing here and i got a complaint. i got a letter saying i'm appointing myself. and nothing was done. the second condition, the liaison and the staff was supposed to work to step down this project on hill street. that's what it says. it was ignored. now, he was right. the planning commission could have imposed some very concrete form of step down. you can correct that mistake. you can do that today. you can impose that step down. since the planning commission commission said this building out to be step down. don't let these conditions fall by the way side. that's wrong. this is the step down. reduce the 50 feet to the historic district. this is the second condition that the planning commission -- i hope you weren't convincing by the compatibility argument. the building is 100 percent maxed out. we cut it back and we did that and that. it came forward first and it violated the planning code and any other sort of things. this is maximum envelope. don't forget that. second, the developers graphic proves incompatibility. what it tells you is the prevailing street block pattern. with one exception, none of the buildings pointing to can be seen from the site. there is hundreds of feet away. the code says look at the building. that's what the code says to look at the compatibility. this is not compatible. you can't be two or three 3 stories taller than any single adjacent building and call yourself compatible. if that's the case, the word has no meaning. here is the graphic, the view. this is the plan. is that compatible. no. absolutely not. anyone that says that is lying. so, as john barbie said, the neighbors feel that they were fooled by the eastern neighborhood plan. there are lots of promises in there about protecting historic resources and protecting existing neighborhoods. i outlined those plans on page 8 and nine. there is a specific zoning policy that says among streets analysis there is low with smaller spaces. you don't get smaller with hill street. hill street is smaller. it's wrong to have that kind of building. don't forget that the marsh also is a historic resource. it's recognized by the state of california as a historic resource to be protected. this separates the historic marsh building and the other historic buildings they promised that they would not accept it. as mary said make this part of the nsr. take that brave step. i reached out to find out if that could be done. there has been no response. but we would like you to do that. if they want to fight about it later, then let them do that. they promise that, make it enforceable and make it a condition. thank you very much. >> the step down on the graphic, would that be for the client? >> yes. >> i'm trying to understand the design and the scale piece. okay. >> i think we can take rebuttal from the permit holder. thank you commissioners. i will keep this brief. i know we have heard a lot this evening and you have other items on the calendar. first of course the project sponsor respects the mark in the institution in the surrounding neighbors and has no interest in hurting the neighborhood. we would like to reiterate the sponsor has worked in good faith to address the neighbors and already agreed to a broad range of activities to prevent noise impacts to the marsh theatre and reduce any impacts on the what could be done under the code and construction liasons there when the work begins. there is no construction on-site. there is no reason for construction outreach. outreach has been part of the appeals launched on the property. mandatory disclosures and will have sound traffic, other impacts associated with entertainment uses in the city with multiple unit are aware of the neighborhood in the existing conditions. they required with the marsh to avoid construction. agreeing to cc and r's specifically to increase the sound structures which we heard about earlier. as is this project is designed to prevent noise impact to the marsh and protected as an institution and we feel it's quite effective. second, i want to stress again the project here is 100 percent code compliant. it is really proposed a smart development containing new development consistent with other city plans. third, intelligent minds can agree this is a tragic style that is without creating a false cents of structure which is one of the interior standards for the historic buildings although it doesn't contain a historic building. the project has been designed and reviewed by the planning department, the planning commission and the historic preservation commission. where they are going to ask that you deny this appeal, but we are available to answer any questions that you have. >> what is the, how many units would you lose to do a step down ? >> we estimate around four. this is a complicated design question for something on the spot like that. >> why would it be on the spot? is this the first time you heard it? >> the neighbors presented this idea to me 2 days ago. first it was chopping up two floors, 4 units, large ones. this latest proposal to make a 50-foot building now would eliminate a whole floor because the sealing -- ceiling was 6 and not acceptable. chopping it back in the rear, i would like to come forward as witness to the planning commission hearing to say this was a difficult point for the commission to bring forward and would not make a hard cut to the building which was a very conscious that this was a very small project. this was not a large expensive view on the scale. cutting on one chunk to basically up an appease the neighbors. they did specifically put in that condition to be mindful of not reducing units for that reason. what happened during that, after the hearing and when it was approved. we went back and worked out and took a whole bank fof bays out of the project design which came up to the rear and changed materials in the rear to create a lighter top, darker bottom which helps lighten the mass this and affect the mass transition. >> i have a question for him before he sits down. and i have a question for you. at this point the documentation has not been done. you are applying for a site permit. >> correct. we have them under way. >> to what the level of sound installation would you design the party wall between your property and the marsh. >> it's actually mentioned by the acoustic engineer. >> to what level. >> this would be the highest level to sound transition to 45 -- the acoustic engineer could speak to that. >> i'm accept 45. the issue here is as you indicated the planning commission had some generalized comments. if we are going to deal with anything here, i want to hear some specification. at what level would you design the level of sound. >> right now if we take a look at the 8-inch wall plus the stairwell, quick estimation is that we are probably well above 70 stc. it's a very high level of sound at the marsh. >> except at the elevator. >> meaning that if there were noise in the elevators? >> yeah. the elevators are typically designed to 1 hour fire rating. >> yeah but 1 hour. i don't want to debate the technical aspects. we'll decide. >> counselor, i have some further questions for you. how do you in legalese define legislation in force at the time? >> it's, that's a good question. i would say this is language written by the appellant. i would assume that's language at the time certificate of occupancy is issued. if there is legislation at the time that would exist that would carry out the two actions, the conditions of approval then it would apply to the project. >> did these two conditions apply at this time? >> no. we spoke with mta as well a couple weeks ago and the issue is raised with regard to residential parking and were told that they didn't have a means of enforcing it. >> i have another question for you but i can't remember right now. anybody else? >> on no. 6 to commissioner fung's questions. what about enforcement? >> as i understand we can use the planning department as well the way in which bmr units is based on the lottery system and the rules of that lottery system are set by code and the housing and procedures manual i believe that would have to be altered. >> it's been asked that you will have on-site affordable units. >> good evening madam president, members of the board, thank you for having us back. your question? >> i'm asking the question relates to the affordable units on-site that has been raised by the appellants as a concern that the affordable units will not be on-site? >> the way it set up now. the nsr is recorded and our intention is to build them on-site, there is a possibility according to law that is discussed here that they could be bought out at some point, but that's not our intention right now. is there a guarantee that they won't be bought out? no. my intention is to build the units and * they have been approved. >> okay. thank you. >> anything further? >> there were some comments about structures and resources. as you know that issue is covered in ceqa and has been thoroughly vetted in the planning commission and board of supervisors and there was a significant impact on the historic district and any historic resources nearby. just to be clear the marsh building was a state designated resource. i'm not sure about the source of that. the documentation i have available to me does not indicate that it's recognized as a historic resource on the national register. also just additionally just from additional perspective as was mentioned one property on hill between the subject property where the historic district begins that property is 50 feet wide. the actual 5 story portion of the proposed building is approximately 71 feet away from where the historic district is where that side of the street begins. also, again just relevant to that street and there was some discussion about small streets and certain protections that does have a right of way from 40 feet or less. that is the benchmark for what is a small street from the code and in those situations there are specific requirements for light angle where there were no lights into those alleys, hill street, the right of way is 50 feet. even though it's a two lane it's a very small street that serves very basic street. valencia street is 90 feet to give you a relation to how the building related. regarding the community liaison again, i don't want to touch on this too much because, but again, the purpose of the community liaison in our standard condition and this condition is not to actively engaged in the community in any on going basis about their issues. it designed for a contact for the broad check for the people that have concerns, that is the person they contact and there is the point of coordination to deal with those issues as has been said. it seems like it's possible that the community liaison was established or determined after the issue ance are the permit. however there were still doubts. i want to clarify the role in terms of their being a passive role as an active role in terms of the community engagement. and lastly, regarding affordable housing, it is true that when we draft motions for projects, how a project is satisfying affordable homes, the planning commission cannot require a sponsor to meet his affordable housing obligation through one specific criteria. they are available to take advantage of any criteria available to them under the haw -- law and the commission is aware of that under approval. there is reference on how the the proposals is to that. also mentioned the currently the lottery system to affordable units there is a priority system and they are multiple things that go in that. there is legislation at the board of supervisors this week about allowing tenants who have been in the ls act. however the lottery has discouraged the city from using any kind of geographic metrics because it opens up to the legal challenges and any specific or certain classes of people that cannot be exclude or included. that's why the city attorney said we can't give specific treatment to affordable houses because it creates a pretty serious legal issue there. obviously, that's a pretty good issue. i'm available for questions about anything else including the affordable housing issue. >> there was a problem with the property starting at 16-unit and that never would have been approved. can you comment on that >> i have not seen anything for that design. if they can fit 16 units in this, then yes it could have been permitted. if that required variances, i can't say for sure that would not have justified and obtained those variances. it is new construction on a usable lot. if it requires some type of hardship. i can say it may not have been highly likely they get a lot of variances on that. if that project would have been approved or if that project would have or not been awarded. >> just to biggy pack on that, if you can say about this a little bit. because the zoning changes the density calculation which used to be based upon a square footage of the site divided by the factors of how many units are allowed there. this one you are allowed as many units as you want with the height limit but some have to be larger units? >> the theory behind is and it not the two districts. it's all the districts across the city. it's beyond just eastern neighborhoods. essentially you are correct, before and other parts of the city based on the per square footage basis so 100 units per 800 square feet per property. in these districts there is no density control, however there is a dwelling unit requirement. 20 percent has to be two bedrooms and 30 percent three bedrooms. it's not filling five or 6 stories full of studios. we want to make sure there is a diverse housing
sites. i think that closes everything. please come to the marsh. it is such a great resource. my daughter has been involved for the last decade at the marsh. i wouldn't send her anywhere else. thank you. >> miss gallagher, i have several questions. how would you characterize the acoustical capacity of the marsh's building? >> i'm sorry, i didn't get that? >> how would you characterize the building that the marsh is in in terms of it's ability to lock sounds from the adjacent properties? >> it's in pretty sad shape. we wish of were better. this is a non-profit organization. it puts just about every cent it has into providing these sliding scales and free services to the community. we need a lot of money. >> one of the comments made by the permit holder was that this used to be a nightclub? it was forced to have provided a number of different acoustical solutions to reduce it's nuisance value? >> i think stephanie can speak to that. >> i don't know too much about that. i think the acoustical done by my office is some corkboard. that's about the extent of it. >> have you done acoustical analysis on your building? >> no. >> this list that you have, is this list combining the other appeals issues or is it just your issues? >> we have worked cooperatively with the liberty hill people. they have let us take the lead on the sound conditions. there is nothing on the sound conditions that ask us for. does this meet what they would like to see? no. i don't believe it conflicts with anything that they would like. >> okay. their list of issues is totally separate from yours. >> i wouldn't say that. they said the marsh wants this and they want others and we sat down to make sure that doesn't happen. i don't see any item that they have talked about and we've talked about in any confliction of any whatsoever. >> your only meeting with the developer in the last few days. >> the developer did come out to the site one time during this process and it resulted of his filing the complaint about the marsh's draining situation. >> this came out on the meeting on monday? >> yes. >> thank you. >> thank you. we can hear from the appellant now in rebuttal. >> thank you commissioners, steve williamson behalf of the other appellant alicia gamez. they skipped the indemnitial review. i gave it to the zoning administrator. both the permits were filed and the applications were filed in 2010. they were allowed to skip that to get preferential treatment on that. look at the numbers in front of you. planning commission took this very seriously. they imposed six conditions. the conditions were ignored. the community liaison was support to be done before the permit issue. the permit issue, the community liaison was appointed from september 19th after the hearing here and i got a complaint. i got a letter saying i'm appointing myself. and nothing was done. the second condition, the liaison and the staff was supposed to work to step down this project on hill street. that's what it says. it was ignored. now, he was right. the planning commission could have imposed some very concrete form of step down. you can correct that mistake. you can do that today. you can impose that step down. since the planning commission commission said this building out to be step down. don't let these conditions fall by the way side. that's wrong. this is the step down. reduce the 50 feet to the historic district. this is the second condition that the planning commission -- i hope you weren't convincing by the compatibility argument. the building is 100 percent maxed out. we cut it back and we did that and that. it came forward first and it violated the planning code and any other sort of things. this is maximum envelope. don't forget that. second, the developers graphic proves incompatibility. what it tells you is the prevailing street block pattern. with one exception, none of the buildings inting to can be seen from the site. there is hundreds of feet away. the code says look at the building. that's what the code says to look at the compatibility. this is not compatible. you can't be two or three 3 stories taller than any single adjacent building and call yourself compatible. if that's the case, the word has no meaning. here is the graphic, the view. this is the plan. is that compatible. no. absolutely not. anyone that says that is lying. so, as john barbie said, the neighbors feel that they were fooled by the eastern neighborhood plan. there are lots of promises in there about protecting historic resources and protecting existing neighborhoods. i outlined those plans on page 8 and nine. there is a specific zoning policy that says among streets analysis there is low with smaller spaces. you don't get smaller with hill street. hill street is smaller. it's wrong to have that kind of building. don't forget that the marsh also is a historic resource. it's recognized by the state of california as a historic resource to be protected. this separates the historic marsh building and the other historic buildings they promised that they would not accept it. as mary said make this part of the nsr. take that brave step. i reached out to find out if that could be done. there has been no response. but we would like you to do that. if they want to fight about it later, then let them do that. they promise that, make it enforceable and make it a condition. thank you very much. >> the step down on the graphic, would that be for the client? >> yes. >> i'm trying to understand the design and the scale piece. okay. >> i think we can take rebuttal from the permit holder. thank you commissioners. i will keep this brief. i know we have heard a lot this evening and you have other items on the calendar. first of course the project sponsor respects the mark in the institution in the surrounding neighbors and has no interest in hurting the neighborhood. we would like to reiterate the sponsor has worked in good faith to address the neighbors and already agreed to a broad range of activities to prevent noise impacts to the marsh theatre and reduce any impacts on the what could be done under the code and construction liasons there when the work begins. there is no construction on-site. there is no reason for construction outreach. outreach has been part of the appeals launched on the property. mandatory disclosures and will have sound traffic, other impacts associated with entertainment uses in the city with multiple unit are aware of the neighborhood in the existing conditions. they required with the marsh to avoid construction. agreeing to cc and r's specifically to increase the sound structures which we heard about earlier. as is this project is designed to prevent noise impact to the marsh and protected as an institution and we feel it's quite effective. second, i want to stress again the project here is 100 percent code compliant. it is really proposed a smart development containing new development consistent with other city plans. third, intelligent minds can agree this is a tragic style that is without creating a false cents of structure which is one of the interior standards for the historic buildings although it doesn't contain a historic building. the project has been designed and reviewed by the planning department, the planning commission and the historic preservation commission. where they are going to ask that you deny this appeal, but we are available to answer any questions that you have. >> what is the, how many units would you lose to do a step down ? >> we estimate around four. this is a complicated design question for something on the spot like that. >> why would it be on the spot? is this the first time you heard it? >> the neighbors presented this idea to me 2 days ago. first it was chopping up two floors, 4 units, large ones. this latest proposal to make a 50-foot building now would eliminate a whole floor because the sealing -- ceiling was 6 and not acceptable. chopping it back in the rear, i would like to come forward as witness to the planning commission hearing to say this was a difficult point for the commission to bring forward and would not make a hard cut to the building which was a very conscious that this was a very small project. this was not a large expensive view on the scale. cutting on one chunk to basically up an appease the neighbors. they did specifically put in that condition to be mindful of not reducing units for that reason. what happened during that, after the hearing and when it was approved. we went back and worked out and took a whole bank fof bays out of the project design which came up to the rear and changed materials in the rear to create a lighter top, darker bottom which helps lighten the mass this and affect the mass transition. >> i have a question for him before he sits down. and i have a question for you. at this point the documentation has not been done. you are applying for a site permit. >> correct. we have them under way. >> to what the level of sound installation would you design the party wall between your property and the marsh. >> it's actually mentioned by the acoustic engineer. >> to what level. >> this would be the highest level to sound transition to 45 -- the acoustic engineer could speak to that. >> i'm accept 45. the issue here is as you indicated the planning commission had some generalized comments. if we are going to deal with anything here, i want to hear some specification. at what level would you design the level of sound. >> right now if we take a look at the 8-inch wall plus the stairwell, quick estimation is that we are probably well above 70 stc. it's a very high level of sound at the marsh. >> except at the elevator. >> meaning that if there were noise in the elevators? >> yeah. the elevators are typically designed to 1 hour fire rating. >> yeah but 1 hour. i don't want to debate the technical aspects. we'll decide. >> counselor, i have some further questions for you. how do you in legalese define legislation in force at the time? >> it's, that's a good question. i would say this is language written by the appellant. i would assume that's language at the time certificate of occupancy is issued. if there is legislation at the time that would exist that would carry out the two actions, the conditions of approval then it would apply to the project. >> did these two conditions apply at this time? >> no. we spoke with mta as well a couple weeks ago and the issue is raised with regard to residential parking and were told that they didn't have a means of enforcing it. >> i have another question for you but i can't remember right now. anybody else? >> on no. 6 to commissioner fung's questions. what about enforcement? >> as i understand we can use the planning department as well the way in which bmr units is based on the lottery system and the rules of that lottery system are set by code and the housing and procedures manual i believe that would have to be altered. >> it's been asked that you will have on-site affordable units. >> good evening madam president, members of the board, thank you for having us back. your question? >> i'm asking the question relates to the affordable units on-site that has been raised by the appellants as a concern that the affordable units will not be on-site? >> the way it set up now. the nsr is recorded and our intention is to build them on-site, there is a possibility according to law that is discussed here that they could be bought out at some point, but that's not our intention right now. is there a guarantee that they won't be bought out? no. my intention is to build the units and * they have been approved. >> okay. thank you. >> anything further? >> there were some comments about structures and resources. as you know that issue is covered in ceqa and has been thoroughly vetted in the planning commission and board of supervisors and there was a significant impact on the historic district and any historic resources nearby. just to be clear the marsh building was a state designated resource. i'm not sure about the source of that. the documentation i have available to me does not indicate that it's recognized as a historic resource on the national register. also just additionally just from additional perspective as was mentioned one property on hill between the subject property where the historic district begins that property is 50 feet wide. the actual 5 story portion of the proposed building is approximately 71 feet away from where the historic district is where that side of the street begins. also, again just relevant to that street and there was some discussion about small streets and certain protections that does have a right of way from 40 feet or less. that is the benchmark for what is a small street from the code and in those situations there are specific requirements for light angle where there were no lights into those alleys, hill street, the right of way is 50 feet. even though it's a two lane it's a very small street that serves very basic street. valencia street is 90 feet to give you a relation to how the building related. regarding the community liaison again, i don't want to touch on this too much because, but again, the purpose of the community liaison in our standard condition and this condition is not to actively engaged in the community in any on going basis about their issues. it designed for a contact for the broad check for the people that have concerns, that is the person they contact and there is the point of coordination to deal with those issues as has been said. it seems like it's possible that the community liaison was established or determined after the issue ance are the permit. however there were still doubts. i want to clarify the role in terms of their being a passive role as an active role in terms of the community engagement. and lastly, regarding affordable housing, it is true that when we draft motions for projects, how a project is satisfying affordable homes, the planning commission cannot require a sponsor to meet his affordable housing obligation through one specific criteria. they are available to take advantage of any criteria available to them under the haw -- law and the commission is aware of that under approval. there is reference on how the the proposals is to that. also mentioned the currently the lottery system to affordable units there is a priority system and they are multiple things that go in that. there is legislation at the board of supervisors this week about allowing tenants who have been in the ls act. however the lottery has discouraged the city from using any kind of geographic metrics because it opens up to the legal challenges and any specific or certain classes of people that cannot be exclude or included. that's why the city attorney said we can't give specific treatment to affordable houses because it creates a pretty serious legal issue there. obviously, that's a pretty good issue. i'm available for questions about anything else including the affordable housing issue. >> there was a problem with the property starting at 16-unit and that never would have been approved. can you comment on that >> i have not seen anything for that design. if they can fit 16 units in this, then yes it could have been permitted. if that required variances, i can't say for sure that would not have justified and obtained those variances. it is new construction on a usable lot. if it requires some type of hardship. i can say it may not have been highly likely they get a lot of variances on that. if that project would have been approved or if that project would have or not been awarded. >> just to biggy pack on that, if you can say about this a little bit. because the zoning changes the density calculation which used to be based upon a square footage of the site divided by the factors of how many units are allowed there. this one you are allowed as many units as you want with the height limit but some have to be larger units? >> the theory behind is and it not the two districts. it's all the districts across the city. it's beyond just eastern neighborhoods. essentially you are correct, before and other parts of the city based on the per square footage basis so 100 units per 800 square feet per property. in these districts there is no density control, however there is a dwelling unit requirement. 20 percent has to be two bedrooms and 30 percent three bedrooms. it's not filling five or 6 stories full of studios. we
are 3 steps. getting the clean slate process started it simple you can get them done in the same day. first fill out an application and they can be opinioned on sf defender.org. next you'll obtain a copy of your rap sheet that's a rap sheet going 80 the hall of justice at 850 bryant street on the fourth floor. the bureau is open monday through friday from 8 to 5. it's located one block away from the public defender's office you'll need to bring our photo id. finally, there's your our own your rap sheet to the front desk. you'll receive a letter from 2 to three weeks explaining the next steps. let's review the 3 steps if that fillist the police stations and on your police station and 3 deliver our rap sheet and application $0.40 to the defender. it can help with financial aid for colleagues. i want you to meet a client who did the clean slate program he refunds a nonprofit literary series. please meet joe. peep at the clean slate program worked with me today, i i am an author of 3 books a husband and a father would you recommend clean slight to another person >> i would definitely recommend that. so, now you have a better understanding of the gibt address benefits of the clean slate program as well as highway to get started. let's hear some common questions. keep in mind those are general questions you'll you may be seated with an attorney who be provide more information based on our circumstances >> just to be clear i don't have to tell my employers will my ejections. >> yes. as well as convictions that have been dismissed. if someone runs a criminal background they'll see the charges but it's dismissed. you will be able to legally tell your employers person never convicted >> i don't to tell anyone is there a way to rears them. >> there's some cases you can. maybe you're arrested because police thought you were someone else. wound our arrest record is sealed you can say you were never >> if i wanted to clear my record if i was convicted of a felon. >> it is also known as a one letter officer the clean stating hit. >> may be able to get it raersz but if i went to prisoner you may quality for a correspondent certified document saying you're a lay abating citizen are. you had should be aware for some state jobs state agencies are allotted to consider our criminal history. those jobs are private security jobs health care workers and other careers involving the children the i can sick or elder. it will benefit you human resources here's some of the things clean slate can't do it doesn't prevent an old conviction to there the sense of a new criminal action. the court might connotes more sentences even if it been submit you can't own or polgs possess a firearm. if it bars you from carrying an firearm eclipsing our record won't change that. submittal doesn't rove a sex ejection. if you're required to register as a sex offender that process will continue even if your record has been cleared, however, other forms of royalties maybe eligible. we look forward to helping you move forward with your life ♪ ♪ so, now you know a little bit more about the program we encourage you to apply go the sf purifyi purifying.org or stop by any place for our clean slate program. our team looks forward to serving >> ♪ ♪ ♪ ♪ ♪ ♪ ♪ in in this cfo memory i remember having cfo with mile-an-hour grorm >> and they were having sausage with my grorm. >> and i was six or seven and i made a face. >> when i was younger i had a preference for cfo i used to drink it but that did something to my body. >> i've been drinking coffee since i was 17 role the only thing i'm good at i have trying to find my way through school i jousted coffee and decided to do that for the rest of my life i started looking into the process of the coffee and where it came from and where do those beans come from oh, they come from a fruit. >> the coach stays with me i grew up and one day i'm going to own a coffee shop i should at it in 98 i visited over 11 hundred coffee shops to see why people go to come over shops. >> we've searched beans api all over the world tokyo and south america. >> when i wanted to do was get into every aspect of the coffee and real estate there was multiply steps of making a great cup of coffee. we do is revolt and that's because with the qualifies of coffee shop and once you revolted it it how far anyone else's and the coffee and one thing about the coffee they were special blends i create. i spent seven years on one blend. each bean is all chemistry and blend with each culture and beans is like people beans and those people give me a reputation and it only happens fwhons a lifetime. your clients love you and that's what happens. >> but then i fell in love a eternal hanging out at the coffee shops the coffee woosz terrible by the community aspects i initiated. >> i think it's a important place to find your friends and people. >> you love my city san francisco has a good name and a reputation and has every culture in this planet in san francisco. it's a small city 7 by 7 but it's huge. ♪ ♪ ♪ ♪ >> i role like the idea of staying in the neighborhood and after living here the entire time there's one thing that's important the people talk about seattle and they talk about seattle and san francisco. or portland and san francisco. san francisco is definitely on the cutting-edge of coffee scene in the entire nation >> there's so much romance in coffee it is around the sourcing of it and how it got her it's a complicated thing. >> i know for a pharynx born to make coffee i got it from my dad that's the life i live speaks for me. let's have a cup of coffee and talk about it ♪ ♪ ♪ ♪you. >> hello san francisco and naomi here with the top 3 places to check auto and this week bring our passport that's about tuesday the holly's food and occur i didn't without worry about long with drum beats and side food is free and the donations will be welcome and thursday the asian art museum that's right if you want to see them their run through september and the technicality is 5 bucks you've heard it here first and friday head to lake merced to the family resource center invites you with a show and make friends and joy and a dinner and space it limited so r.s.v.p. it's the weekly buzz gist visit us at san francisco >> >> >> good evening and welcome to the february 26, 2014, meeting of the san francisco board of appeals. the presiding officer this evening is our vice-president ann lazarus joined by commissioner fung and hurtado and we expect supervisor here briefly. at the control of the boards legal assistance is pacheco. we are joined by representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not
anywhere else. thank you. >> miss gallagher, i have several questions. how would you characterize the acoustical capacity of the marsh's building? >> i'm sorry, i didn't get that? >> how would you characterize the building that the marsh is in in terms of it's ability to lock sounds from the adjacent properties? >> it's in pretty sad shape. we wish of were better. this is a non-profit organization. it puts just about every cent it has into providing these sliding scales and free services to the community. we need a lot of money. >> one of the comments made by the permit holder was that this used to be a nightclub? it was forced to have provided a number of different acoustical solutions to reduce it's nuisance value? >> i think stephanie can speak to that. >> i don't know too much about that. i think the acoustical done by my office is some corkboard. that's about the extent of it. >> have you done acoustical analysis on your building? >> no. >> this list that you have, is this list combining the other appeals issues or is it just your issues? >> we have worked cooperatively with the liberty hill people. they have let us take the lead on the sound conditions. there is nothing on the sound conditions that ask us for. does this meet what they would like to see? no. i don't believe it conflicts with anything that they would like. >> okay. their list of issues is totally separate from yours. >> i wouldn't say that. they said the marsh wants this and they want others and we sat down to make sure that doesn't happen. i don't see any item that they have talked about and we've talked about in any confliction of any whatsoever. >> your only meeting with the developer in the last few days. >> the developer did come out to the site one time during this process and it resulted of his filing the complaint about the marsh's draining situation. >> this came out on the meeting on monday? >> yes. >> thank you. >> thank you. we can hear from the appellant now in rebuttal. >> thank you commissioners, steve williamson behalf of the other appellant alicia gamez. they skipped the indemnitial review. i gave it to the zoning administrator. both the permits were filed and the applications were filed in 2010. they were allowed to skip that to get preferential treatment on that. look at the numbers in front of you. planning commission took this very seriously. they imposed six conditions. the conditions were ignored. the community liaison was support to be done before the permit issue. the permit issue, the community liaison was appointed from september9th after the hearing here and i got a complaint. i got a letter saying i'm appointing myself. and nothing was done. the second condition, the liaison and the staff was supposed to work to step down this project on hill street. that's what it says. it was ignored. now, he was right. the planning commission could have imposed some very concrete form of step down. you can correct that mistake. you can do that today. you can impose that step down. since the planning commission commission said this building out to be step down. don't let these conditions fall by the way side. that's wrong. this is the step down. reduce the 50 feet to the historic district. this is the second condition that the planning commission -- i hope you weren't convincing by the compatibility argument. the building is 100 percent maxed out. we cut it back and we did that and that. it came forward first and it violated the planning code and any other sort of things. this is maximum envelope. don't forget that. second, the developers graphic proves incompatibility. what it tells you is the prevailing street block pattern. with one exception, none of the buildings pointing to can be seen from the site. there is hundreds of feet away. the code says look at the building. that's what the code says to look at the compatibility. this is not compatible. you can't be two or three 3 stories taller than any single adjacent building and call yourself compatible. if that's the case, the word has no meaning. here is the graphic, the view. this is the plan. is that compatible. no. absolutely not. anyone that says that is lying. so, as john barbie said, the neighbors feel that they were fooled by the eastern neighborhood plan. there are lots of promises in there about protecting historic resources and protecting existing neighborhoods. i outlined those plans on page 8 and nine. there is a specific zoning policy that says among streets analysis there is low with smaller spaces. you don't get smaller with hill street. hill street is smaller. it's wrong to have that kind of building. don't forget that the marsh also is a historic resource. it's recognized by the state of california as a historic resource to be protected. this separates the historic marsh building and the other historic buildings they promised that they would not accept it. as mary said make this part of the nsr. take that brave step. i reached out to find out if that could be done. there has been no response. but we would like you to do that. if they want to fight about it later, then let them do that. they promise that, make it enforceable and make it a condition. thank you very much. >> the step down on the graphic, would that be for the client? >> yes. >> i'm trying to understand the design and the scale piece. okay. >> i think we can take rebuttal from the permit holder. thank you commissioners. i will keep this brief. i know we have heard a lot this evening and you have other items on the calendar. first of course the project sponsor respects the mark in the institution in the surrounding neighbors and has no interest in hurting the neighborhood. we would like to reiterate the sponsor has worked in good faith to address the neighbors and already agreed to a broad range of activities to prevent noise impacts to the marsh theatre and reduce any impacts on the what could be done under the code and construction liasons there when the work begins. there is no construction on-site. there is no reason for construction outreach. outreach has been part of the appeals launched on the property. mandatory disclosures and will have sound traffic, other impacts associated with entertainment uses in the city with multiple unit are aware of the neighborhood in the existing conditions. they required with the marsh to avoid construction. agreeing to cc and r's specifically to increase the sound structures which we heard about earlier. as is this project is designed to prevent noise impact to the marsh and protected as an institution and we feel it's quite effective. second, i want to stress again the project here is 100 percent code compliant. it is really proposed a smart development containing new development consistent with other city plans. third, intelligent minds can agree this is a tragic style that is without creating a false cents of structure which is one of the interior standards for the historic buildings although it doesn't contain a historic building. the project has been designed and reviewed by the planning department, the planning commission and the historic preservation commission. where they are going to ask that you deny this appeal, but we are available to answer any questions that you have. >> what is the, how many units would you lose to do a step down ? >> we estimate around four. this is a complicated design question for something on the spot like that. >> why would it be on the spot? is this the first time you heard it? >> the neighbors presented this idea to me 2 days ago. first it was chopping up two floors, 4 units, large ones. this latest proposal to make a 50-foot building now would eliminate a whole floor because the sealing -- ceiling was 6 and not acceptable. chopping it back in the rear, i would like to come forward as witness to the planning commission hearing to say this was a difficult point for the commission to bring forward and would not make a hard cut to the building which was a very conscious that this was a very small project. this was not a large expensive view on the scale. cutting on one chunk to basically up an appease the neighbors. they did specifically put in that condition to be mindful of not reducing units for that reason. what happened during that, after the hearing and when it was approved. we went back and worked out and took a whole bank fof bays out of the project design which came up to the rear and changed materials in the rear to create a lighter top, darker bottom which helps lighten the mass this and affect the mass transition. >> i have a question for him before he sits down. and i have a question for you. at this point the documentation has not been done. you are applying for a site permit. >> correct. we have them under way. >> to what the level of sound installation would you design the party wall between your property and the marsh. >> it's actually mentioned by the acoustic engineer. >> to what level. >> this would be the highest level to sound transition to 45 -- the acoustic engineer could speak to that. >> i'm accept 45. the issue here is as you indicated the planning commission had some generalized comments. if we are going to deal with anything here, i want to hear some specification. at what level would you design the level of sound. >> right now if we take a look at the 8-inch wall plus the stairwell, quick estimation is that we are probably well above 70 stc. it's a very high level of sound at the marsh. >> except at the elevator. >> meaning that if there were noise in the elevators? >> yeah. the elevators are typically designed to 1 hour fire rating. >> yeah but 1 hour. i don't want to debate the technical aspects. we'll decide. >> counselor, i have some further questions for you. how do you in legalese define legislation in force at the time? >> it's, that's a good question. i would say this is language written by the appellant. i would assume that's language at the time certificate of occupancy is issued. if there is legislation at the time that would exist that would carry out the two actions, the conditions of approval then it would apply to the project. >> did these two conditions apply at this time? >> no. we spoke with mta as well a couple weeks ago and the issue is raised with regard to residential parking and were told that they didn't have a means of enforcing it. >> i have another question for you but i can't remember right now. anybody else? >> on no. 6 to commissioner fung's questions. what about enforcement? >> as i understand we can use the planning department as well the way in which bmr units is based on the lottery system and the rules of that lottery system are set by code and the housing and procedures manual i believe that would have to be altered. >> it's been asked that you will have on-site affordable units. >> good evening madam president, members of the board, thank you for having us back. your question? >> i'm asking the question relates to the affordable units on-site that has been raised by the appellants as a concern that the affordable units will not be on-site? >> the way it set up now. the nsr is recorded and our intention is to build them on-site, there is a possibility according to law that is discussed here that they could be bought out at some point, but that's not our intention right now. is there a guarantee that they won't be bought out? no. my intention is to build the units and * they have been approved. >> okay. thank you. >> anything further? >> there were some comments about structures and resources. as you know that issue is covered in ceqa and has been thoroughly vetted in the planning commission and board of supervisors and there was a significant impact on the historic district and any historic resources nearby. just to be clear the marsh building was a state designated resource. i'm not sure about the source of that. the documentation i have available to me does not indicate that it's recognized as a historic resource on the national register. also just additionally just from additional perspective as was mentioned one property on hill between the subject property where the historic district begins that property is 50 feet wide. the actual 5 story portion of the proposed building is approximately 71 feet away from where the historic district is where that side of the street begins. also, again just relevant to that street and there was some discussion about small streets and certain protections that does have a right of way from 40 feet or less. that is the benchmark for what is a small street from the code and in those situations there are specific requirements for light angle where there were no lights into those alleys, hill street, the right of way is 50 feet. even though it's a two lane it's a very small street that serves very basic street. valencia street is 90 feet to give you a relation to how the building related. regarding the community liaison again, i don't want to touch on this too much because, but again, the purpose of the community liaison in our standard condition and this condition is not to actively engaged in the community in any on going basis about their issues. it designed for a contact for the broad check for the people that have concerns, that is the person they contact and there is the point of coordination to deal with those issues as has been said. it seems like it's possible that the community liaison was established or determined after the issue ance are the permit. however there were still doubts. i want to clarify the role in terms of their being a passive role as an active role in terms of the community engagement. and lastly, regarding affordable housing, it is true that when we draft motions for projects, how a project is satisfying affordable homes, the planning commission cannot require a sponsor to meet his affordable housing obligation through one specific criteria. they are available to take advantage of any criteria available to them under the haw -- law and the commission is aware of that under approval. there is reference on how the the proposals is to that. also mentioned the currently the lottery system to affordable units there is a priority system and they are multiple things that go in that. there is legislation at the board of supervisors this week about allowing tenants who have been in the ls act. however the lottery has discouraged the city from using any kind of geographic metrics because it opens up to the legal challenges and any specific or certain classes of people that cannot be exclude or included. that's why the city attorney said we can't give specific treatment to affordable houses because it creates a pretty serious legal issue there. obviously, that's a pretty good issue. i'm available for questions about anything else including the affordable housing issue. >> there was a problem with the property starting at 16-unit and that never would have been approved. can you comment on that >> i have not seen anything for that design. if they can fit 16 units in this, then yes it could have been permitted. if that required variances, i can't say for sure that would not have justified and obtained those variances. it is new construction on a usable lot. if it requires some type of hardship. i can say it may not have been highly likely they get a lot of variances on that. if that project would have been approved or if that project would have or not been awarded. >> just to biggy pack on that, if you can say about this a little bit. because the zoning changes the density calculation which used to be based upon a square footage of the site divided by the factors of how many units are allowed there. this one you are allowed as many units as you want with the height limit but some have to be larger units? >> the theory behind is and it not the two districts. it's all the districts across the city. it's beyond just eastern neighborhoods. essentially you are correct, before and other parts of the city based on the per square footage basis so 100 units per 800 square feet per property. in these districts there is no density control, however there is a dwelling unit requirement. 20 percent has to be two bedrooms and 30 percent three bedrooms. it's not filling five or 6 stories full of studios. we want to make sure there is a diverse housing in the city. and you have the other physical control, the rear yard and open space requirements and exposure. all of these requirements create a patch
representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call item 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. sglsh 1234 item 7 c, d: 7cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it. the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan and the missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the set backs and this type of thing. >> during the planning entitlement the housing accountability act was not brought up. >> no, this is the first time before this board. >> i have a related question. we heard at the last hearing that it was not feasible to conduct the small floors. >> steve is prepared to answer those questions in detail. you would basically be making an sro and one of the objection is that the properties are too dense and too small. that's what they are saying the whole time. if the issue is to just make it ha
>> >> >> good evening and welcome to the february 26, 2014, meeting of the san francisco board of appeals. the presiding officer this evening is our vice-president ann lazarus joined by commissioner fung and hurtado and we expect supervisor here briefly. at the control of the boards legal assistance is pacheco. we are joined by representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call item 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. sglsh 1234 item 7 c, d: 7cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it. the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan and the missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the set backs and this type of thing. >> during the planning
legal assistance is pacheco. we are joined by representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call item 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. sglsh 1234 item 7 c, d: 7cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it. the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the set backs and this type of thing. >> during the planning entitlement the housing accountability act was not brought up. >> no, this is the first time before this board. >> i have a related question. we heard at the last hearing that it was not feasible to conduct the small floors. >> steve is prepared to answer those questions in detail. you would basically be making an sro and one
>> >> >> good evening and welcome to the february 26, 2014, meeting of the san francisco board of appeals. the presiding officer this evening is our vice-president ann lazarus joined by commissioner fung and hurtado and we expect supervisor here briefly. at the control of the boards legal assistance is pacheco. we are joined by representative. scott sanchez in the front row is the zoning administrator. duffy is here senior building inspector representing the department of building inspection and urban forester representing the bureau of urban forestry. mr. pacheco, please go over the boards meeting guidelines and conduct the swearing in process. city clerk: the board request that you turn off all cell phones and pagers. please carry on conversations in the hallway. appellants, permit holders and department representatives have 7 cases to present their cases. speakers must conclude their comments within the period. public comment has 3 minutes but no rebuttals. to assist the board in accurate presentation of minutes, m members of the public who wish to speak on an item is asked to please fill out a speaker card. the board also welcome your comments and suchlthsz -- suggestions. if you have questions about a hearing, please call the board office tomorrow morning located at 50/50 mission street room 304. this meeting is broadcast live on san francisco government television sf gov tv. thank you for your attention. at this time we'll conduct our swearing in process. if you are going to testify, please stand and raise your right hand and say i do after you have been sworn in or affirmed. please note that any member of the public may speak without being sworn with the sunshine ordinance. you'll do you solemnly swear or affirm that everything you will speak is the truth and nothing but the treetsdz. -- truth. >> we have item 6. requests a tree removal. i understand these parties have asked for rescheduling to see if a resolution maybe worked out. we need a vote in order to move that. >> i move to continue. >> thank you. is there any public comment on the rescheduling of this item? seeing none, mr. pacheco, if you can call the roll. >> on that motion from commissioner hurtado to continue this meeting until april 30th. on that motion commissioner fung, hwang is absent, vice-president lazarus, honda hurtado. this meeting is rescheduled. >> next item is no. 8. requesting an alteration, the parties are asking this hearing be rescheduled to may 14, 2014. mr. fung, i hear you have a conflict in this case and should not participate in a vote about this even though it's about a rescheduling. >> for the record i have financial interest within 500 feet of the subject site and therefore ask the board to recuse me from this vote. >> i would move to continue until may 14. >> thank you. is there any additional public comment? seeing none, public comment is closed. mr. pacheco? >> on that motion from commissioner hurtado to reschedule this matter, 13-175 to may 14. commissioner fung is recused. the vote is 3-0. this matter is rescheduled to may 14. >> thank you. lastly as item no. 10, appeal no. v 14 has been withdrawn and will not be heard this evening. we can move to item no. 1 for any matters none on the calendar. is there anyone wishing to speak under general comment? seeing none. item no. 2 is the election of officers. when this came up you asked it be continued until we have a full house and i wonder how you would like to proceed tonight? >> that would be my preference. unless there is objection from anyone else. i would like commissioner nwankwo -- whang to be here. >> i would prefer to vote. >> the last time it was on calendar and she knew she had to be out she said it would be fine to proceed. yeah. i got a text from her as well. >> shall we proceed then? great. so this is pursuant to article 2, section one of the boards rules and typically the board starts with the office of vice-president. if you would like to do that again we can take nominations for office. okay? >> i would like to nominate hurtado. >> great, is there any other nomination? seeing then commissioner hurtado, are you willing to accept this nomination? >> yes. >> we should take a vote on the nomination of the vice-president. before we do this, is there any public comment on this? mr. pacheco? city clerk: with a motion from commissioner honda to elevate commissioner hurtado to vice-president. on that motion, commissioner fung, vice-president lazarus and commissioner hurtado? aye. the vote is 4-0. and commissioner hurtado is the new vice-president. >> congratulations. moving to office for president. >> i would like to nominate lazarus for president. >> any other nominations? is there any additional public comment? seeing none, public comment is closed. >> mr. pacheco, if you can please call the roll. >> aren't you going to ask me? >> are you willing to serve? >> yes. i appreciate that very much. >> mr. pacheco, on that motion from commissioner honda to elevate vice-president ann lazarus to presidency of the board, on that motion, commissioner fung, commissioner hurtado? aye, and vice-president lazarus? aye. thank you, the vote is 4-0 and ann lazarus issel elevated to the presidency of the board. >> congratulations. and let me this you in advance for helping me and the board for the next year. i really appreciate your willing innes to serve. >> okay. we can move then to item no. 3 which is commissioner comments and questions. anything, commissioners? >> my only comment is that on march 13th is our scheduled meeting? >> the 12th. >> i have a flight out to the east coast. so i will have to leave about 9:00 p.m.. so everyone knows. any other commissioners? any other public comment? seeing none. then item four is your consideration of board minutes for january 19, 2014. any additions? a motion to submit the minutes? >> so moved. >> is there any additional public comment? seeing none, public comment is closed. >> okay. we have a motion from the vice-president to adopt the february 19th minutes. on that motion, commissioners fung, commissioner hwang is absent, president lazarus, and commissioner honda. the vote is 4-0. those minutes are adopted. >> item no. 5 on the boards calendar is a closed session. the first item under that is public comment on all matters related to the closed session. is there any public comment on this item? >> good evening, steve williamson behalf of the appellant. i would like to urge the board not to go into closed session. as the board of appeals you conduct a public business and you are residents here m san diego. closed sessions take away the public right to know what's going on and takes away the transparency. the decision that you reached in this particular case was reached in the most public matter possible in a very large public meetings attended by dozens of people who gave testimony and broadcast on television at the same time. your deliberations and your decision was also done in the full light of day whether right or wrong or whether agreed or disagreed with it was open and transparent. i urge you not to change that now. don't move the process behind closed doors. the public will end up what's happening now and i don't believe if you look at the statutory language that this is a situation that even calls for a closed session. if that true language is very specific because of the disfavored nature of closed door meetings and the administrative code of 67.10 mirrors the state government code sunshine ordinance says a closed session maybe held but when required by legal council and motion vote to open session to assert attorney-client privilege and that's when you would go into closed session regarding pending litigation. the definition of pending litigation is obviously if a proceeding has been filed in front of some tribunal. that's not the case here, or if a point has been reached in your deliberations where litigation seems, there is a significant exposure of litigation is what the statute says. i don't think that's present here. the administrative process hasn't been exhausted and there hasn't been a rehearing. what you got is a mere legal argument not on the findings and incorrect legal argument and the party who made that legal argument is not here to support it or defend it. you are given a threat of litigation, there is no litigation pending and i don't think there is any significant exposure that would drive this board behind closed doors into closed session. >> thank you, any further public comment? please step forward. >> thank you. behind key, resident. i would echo mr. williams point and say that really this is no the a complex legal issue as i put on here. both the statute and the case law here are very clear. in the appellate court set out a process for determining whether or not the haa applies to a project like this. your first it has to be determined that the project is in fact complies with zoning guidelines. >> excuse me for a minute. isn't this related to the issue of closed session and not the matter as agendaized? >> i think we can allow him to comment as to why he thinks we shouldn't go into closed session. >> basically this is a fair instance where the statute not applying here because you have already made a decision that the project does not comply with the residential design guidelines and you had 13 policies that you cited for that. as such you don't even follow into statutory framework. this project is not protected by the haa. furthermore, one last point is that the haa only applies to housing development projects and the haa very clearly defines housing development project if it's a mixed use project as one where the non-residential uses are related to neighborhood and commercial uses. the neighborhood commercial is defined as small specialty stores. this is going tools to have a restaurant and a restaurant is not a store according to the land use guidelines. as such the project is not housing development project and not subject to the protections of thehaa. thank you. >> any other public comments on the closed session. seeing none. commissioners the next item is to whether or not hold a closed session. if you wish to hold a closed session you need to do so. >> on advice of council i would move to go into closed session based on the attorney-client privilege. >> okay. mr. pacheco will you take roll on that. >> on the motion from the vice-president to enter into closed session. on that motion commissioner fung, aye, commissioner huang is absence, commissioner lazarus, commissioner honda. the vote welcome back to the wednesday february 26, 2014, meeting of the san francisco board of appeals. we are still with item no. 5 which is a closed session. the board has reconvened in open session and under item 5c there is no action taken during closed session and the board needs to vote on whether or not to disclose any or all discussion that took place. >> do we need a motion? >> okay. i move not disclose what was discussed in closed session based on the attorney-client privilege. >> mr. pacheco if you can cal the role, please. city clerk: on that motion to not disclose content of the closed session. commissioner fung, commissioner hwang is absent, commissioner lazarus and commissioner honda. the vote is 4-0 to not disclose the content. >> item no. 6 was continued to april 30, 2014. we'll call item 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings 7 abc and d. these will be heard together. item 7 a, b: 7aa appeal no. 13-095 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7bb appeal no. 13-096 the marsh, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. sglsh 1234 item 7 c, d: 7cc appeal no. 13-097 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, demolition permit demolish one-story restaurant building with 2,000sf of ground floor areaa. application no. 2010/12/27/7436. public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions. 7dd appeal no. 13-098 alicia gamez, appellanttss vs. dept. of building inspection, respondent planning dept. approval 1050-1058 valencia street. protesting the issuance on july 17, 2013, to m. rutherford trust / shizuo holdings, permit to erect a building erect a five-story, 12-unit apartment/retail/parking building with 3000sf of ground floor areaa application no. 2010/12/27/7437"s". public hearing held dec. 11, 2013. for further consideration today and for the adoption of tentative findings and conditions.1234 >> >> they are all deal with the property at 1050 advance -- valencia street and holding a demolition permit to demolish 1 story restaurant building and issue for the trust due holdings of a permit to e erect a building 12 story building. the public hearing was held on december 11, 2013. this matter is on for further consideration today and for board as consideration of findings and conditions. >> so i believe what we'll do with the president's consent is to have each party briefly address the board on the additional written arguments that they submitted starting with the first appellant, the marsh whwill have three 3 minutes and the next appellant will have three 3 minutes and the department holder will have 6 since they are combined matters. >> i want to make a correction to comments i made in an earlier hearing that there had not been any meetings in 2012 after the planning commission hearing. just in the last few days she found a record of two meetings subsequent to that hearing. it was after that second meeting that the marsh was notified about encroachment onto the property. mr. rose did complete additional research and i wanted to clear the record. now to the matter at hand. i told them that the burden of proof shouldn't be the burden as is that and we needed four votes to prevail and then the vote would shift and also has to prove manifest or injustice or some new evidence and he needed four votes. he asked me after the first hearing, does that mean the burden has shifted but of course i had to say no because it was hard for know explain why. but since, mr. rutsdzberg doesn't want to define the position. he wants to over turn your vote. i am reminded of the movie ground hog with bull murray. his day doesn't go so well and next day it's ground hog again. the rest of the movie bill murray goes on over again until finally his day was over. it's as if mark rufrsberg is bill murray and the hearing is the date. mr. rufrsberg first date didn't go so well but he was able to do it again in january and he was able to wake up and have a third crack tonight all without having the burden of proof shift to him and without having to approve manifest injustice and without having to garner four votes. please do not let him become bill murray. you voted on december 11th. your subsequent votes must be on the findings and conditions. thank you for your time. >> we can hear from mr. williamson behalf of the other appellant. >> good evening again, steven williams. i tried to exhaust the issues from the board thank you for the time to do that. the law cited by mr. genius last time government code section 65589.5. the housing accountability act has been the law in california for more than 32 years. let me say that again, 32 years. in my brief i discussed every case which is touched on or interpreted that code section. and there has only been seven of them. let me repeat that. there has been 7 cases in 32 years. it's not applicable in this case. improper and incorrect legal argument made on the merits of the case during the findings portion of this particular hearing. so, the state law had completely supplanted all local authority on the cases of dire health and welfare, it would be front page news. there would be hundreds of cases, not seven. the case he referenced and i don't know how to pronounce it. there is a consonant that an appears in the case. there were no findings in fresno and that's why the court's reversed it and said you have to have some findings and that's not what happened here. in this particular instance it does not apply. one, because the board specifically found that this particular project does not comply with the general plan, design guidelines. that's where all projects start. the general plan lays down a wealth of design issues. that was exactly the findings you made. that was part of the statute that mr. jans omitted. he left off reference to design guidelines and that's what your findings why. in order to meet the statute you have to meet all the prongs of it. the second prong is the board would have to deny the project altogether or reduce it's density. the board didn't do either went of those. the board in fact just reduced the project in correspondence with the general plan and the missionary plan which requires compatibility with existing neighborhoods. as i showed in my brief, the density and affordable housing can still be put into this project. it not forbidden and he can meet the bedroom requirement of the missionary plan. i urge you to stick by your decision. it was a brave and right thing to do. >> thank you, mr. rutsdzer fird. >> good evening. i guess first i will address the three prongs. the project come applies with his argument that the project was determined by the board to be out of compliance. the law reads the project must be compliant with the objective general plan and standards and criteria at the effective time of the project application was determined to be complete. by our calculation that was may 7, 2012. it also says that the objective standards, i didn't really see any objective standards in your findings with all do respect. the second prong, board ruling did not disapprove the project or conditional approval on the conditions that it be constructed at a lower density. if you r e move the top floor reduce the project by 677 skwaeft his argument that we can squeeze 12 units into three floors that goes against one of your findings which was that as and i'm quoting as a 5 story structure with 12 residential units the project would have a density significantly greater than the surrounding residents. it directory continue disabilities one -- contradicts the appellants argument. we obviously don't agree with that but i don't see how we can have it both ways. then lastly the project does not meet the definition of housing development project. the planning code doesn't define small scale general or specialty scores with goods and services. restaurant, but according to planning staff, a restaurant would generally be considered a neighborhood serving commercial use on article 7 of the planning code and 62 says that restaurants are part of neighborhoods retail uses. i don't know how you reached the conclusion that this law has never been used. i can't see where it has been used at city level, city councils or boards like this. anyway. thank you. steve will be up here. that was three minutes.3 minutes. >> a question for you. during the pro curing of the land entitlements -- we reduced it from 15 units. then it was reduced to 12 units, that's right. we reduced it in order to comply with the se