2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 BOARD OF APPEALS
CITY & COUNTY OF SAN FRANCISCO
MEETING MINUTES - WEDNESDAY, APRIL 23, 2003
5:00 P.M., CITY HALL, ROOM 416, ONE DR. CARLTON B. GOODLETT PLACE
PRESENT: President Arnold Chin, Vice President Kathleen Harrington, Commissioner Hisashi Sugaya, Commissioner Sabrina Saunders, and Commissioner Douglas Shoemaker.
Catharine Barnes, Deputy City Attorney (DCA); Craig Nikitas for the Planning Dept. (PD)and the Zoning Administrator (ZA); Laurence Kornfield, Chief Building Inspector, DBI (CBI, DBI); Robert Feldman, Executive Secretary; Victor Pacheco, Legal Assistant; and Claudine Woeber, Official Court Reporter.
(1) PUBLIC COMMENT: At this time, members of the public may address the Board on items of interest to the public that are within the subject matter jurisdiction of the Board except agenda items. With respect to agenda items, your opportunity to address the Board will be afforded when the item is reached in the meeting with one exception. When the agenda item has already been reviewed in a public hearing at which members of the public were allowed to testify and the Board has closed the public hearing, your opportunity to address the Board must be exercised during the Public Comment portion of the calendar. Each member of the public may address the Board for up to three minutes. If it is demonstrated that comments by the public will exceed 15 minutes, the President may continue Public Comment to another time during the meeting.
SPEAKERS: Mark Gruberg, UTW, explained his objection to having to pay multiple fees for appeals of Taxicab Commission action on several medallions at a time. He feels there should be a single fee for appeal of a Commissioner resolution that covers several medallions. Barry Taranto, UTW, said he supports the prior speaker and feels the same argument should apply to rehearing requests; he said he intends to appeal a Taxicab Commission action soon which covers 8 medallions, and under the present system it would cost the UTW $2000 to file, instead of $250.
(2) COMMISSIONERS COMMENTS & QUESTIONS:
SPEAKERS: None.
(3) ADDENDUM ITEMS:
ITEM A: 39 Country Club Drive. Letter from Lawrence Badiner, Zoning Administrator, on behalf of the Planning Department, and a letter from Ibrahim Malik, Salwa Ghaim, & Thomas Ngai, Appellant(s), requesting rehearing of Appeal No(s). 03-009, Malik et al. vs. DBI, PDA, decided March 19, 2003. At that time, upon motion by Commissioner Saunders, the Board voted 1-3-1 (President Chin, Vice President Harrington & Commissioner Sugaya dissented, & Commissioner Shoemaker absent) to reschedule the matter to April 23, 2003. 3 votes being required to reschedule a case, the motion failed, and the case went forward. Afterwards, upon motion by Commissioner Saunders, the Board voted 3-1-1 (Commissioner Sugaya dissented, Commissioner Shoemaker absent) to uphold the permit on condition that the addition be shortened on the 2nd floor to 15 ½ feet. 4 votes being required to place conditions on an issued permit, the motion failed, and the subject permit was upheld with no conditions. Permit Holder(s): David Truong c/o Thanh Ngo. Project: horizontal addition on single-family house.
ACTION: Upon motion by President Chin, the Board voted 5-0 to grant the rehearing request and set it for May 14, 2003.
SPEAKERS: Craig Nikitas, PD, explained that the Dept. made an error in approving a plan for an addition that protrudes into the required rear yard in violation of provisions of the Code and asked the Board to grant a rehearing so that the error can be corrected and the permit holder required to alter the plans or else seek a variance. Thanh Ngo, Permit Holder(s), said all aspects of the plans were discussed at the hearing and that since no new evidence was presented, no rehearing is justified. He asked who would pay for the delay and costs incurred by a rehearing and new plans and a variance application? Ibrahim Malik, co-appellant, supports the rehearing request since the plan failed to comply with the Code.
ITEM B: 1349 Clayton Street. Letter from Tom Katz, Appellant, requesting rehearing of Appeal No(s). 02-172, Katz vs. DBI, PDD, decided March 19, 2003. At that time, upon motion by Vice President Harrington, the Board voted 3-1-1 (Commissioner Sugaya dissented, Commissioner Shoemaker absent) to overrule the denial by the Planning Dept. and grant the subject permit. 4 votes being required to overturn any departmental action, the motion failed, and the denial of the subject permit was upheld. Project: on 13-unit apartment building; replace existing steel windows with vinyl retrofit – same shape and size; total 20 windows.
ACTION: Upon motion by President Chin, the Board voted 4-1 (Commissioner Sugaya dissented) to grant the rehearing request and set it for May 21, 2003.
SPEAKERS: Tom Katz, appellant, asked the Board to grant him a rehearing since he did not know he could have requested a continuance the night of the hearing for lack of a 5 member Board.
ITEM C: 537-539 Natoma Street. Letter from Chelsea Owens & Melani Swiercinski, Requestors, asking the Board to take jurisdiction over Building Permit Application No(s). 2002/12/10/3170. Permit Holder(s): Jean Howe. Project: on commercial/industrial building; remove illegal dwellings and construction; construct two unisex accessible sanitary facilities.
Date Permit(s) Issued: Dec. 10, 2002
Last Day to Appeal: Dec. 26, 2002
Jurisdiction Request Received: March 27, 2003
ACTION: Upon motion by President Chin, the Board voted 5-0 to deny the jurisdiction request.
SPEAKERS: Dennis Hyde, attorney for permit holder, said that the requestors had moved out of his client’s building and he has been unable to contact them and that they are not in the hearing room.
ITEM D: 493 Haight Street. Letter from Frieda Humboldt, Felicia Michaels, & Faye Adelstein, Appellant(s), requesting rehearing of Appeal No(s). 03-004, Humboldt et al. vs. DBI, PDA, decided March 19, 2003. At that time, upon motion by President Chin, the Board voted 4-0-1 (Commissioner Shoemaker absent) to uphold the subject permit with the following condition(s): a) that the antennas be limited to 2 watts each; b) that the readings be reported monthly to the Dept. of Public Health and the Appellants; c) that there be no exposed wiring, wiring to be inside; d) that the antennas shall not be visible in front of the building, and shall be covered as per the letter dated Feb. 5, 1998 by then Zoning Administrator Robert Passmore; e) and that the roof access stairs shall be covered and painted as per the aforementioned letter. Permit Holder(s): Haight & Fillmore Association LLC. Project: on 31-unit mixed use residential/commercial building; installation of 2 omni type antenna equipment.
ACTION: Upon motion by President Chin, the Board voted 5-0 to deny the rehearing request.
SPEAKERS: Frieda Humboldt, co-appellant, asked the Board to grant a rehearing because the appellants are aware of fire hazard in the building and the permit holder has failed to comply with Fire Dept. regulations. John Newman, attorney for permit holder, objected to a rehearing for lack of new evidence; he said the violations had been corrected, even items unrelated to the permit for the antennas.
(4) APPEAL NO. 02-152
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MCDONALD’S, Appellant(s)
vs.
ZONING ADMINISTRATOR, Respondent
|
Lakeshore Plaza Shopping Center on Sloat Boulevard.
Appealing a determination dated July 26, 2002, addressed to Walter Wong at Jaidin Consulting, that a hamburger restaurant is not a permitted use at the subject property because hamburger restaurants were specifically omitted as an allowable use by the Board of Supervisors when it approved conditions [or the Conditional Use (CU) authorization at Lakeshore Plaza.
ON OCT. 30, 2002, THE BOARD VOTED TO OVERRULE THE DETERMINATION (VOTE 4-1). [ON NOV. 20, 2002, THE BOARD SUSPENDED ITS RULES, ALLOWED A COMMISSIONER TO REQUEST A REHEARING & GRANTED THE REHEARING (VOTE 4-1).
[FOR REHEARING TODAY.
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ACTION: Upon motion by President Chin, the Board voted 2-3 (Commissioners Shoemaker, Sugaya & Saunders dissented) to overrule the subject determination. Four votes being required to overturn or modify any departmental action, the motion failed, and the ZA’s determination was upheld.
SPEAKERS: Craig Nikitas, PD, explained the Supervisors’ condition limiting restaurants in the shopping center. Andrew Junius, attorney for the owner of the shopping center and the operators of it, said it was no longer a McDonald’s issue but his clients wanted the option of leasing to a small low-volume hamburger restaurant and have agreed to not lease to a high-volume type; he said the intent of the Supervisors in 1989 is irrelevant and the plain reading of the condition and the Code provision are all that matters and sandwiches are allowed. He said his client does not intend to file a CU application to modify conditions adopted by the Supervisors.
Public comment for the ZA: Ronald Chan described the neighborhood group and individuals who are in support of the ZA and he outlined their arguments. Bill Chionsini, President of West of Twin Peaks Association said he is concerned about the CU process and its integrity; he said this is the first time the owner’s representative has spoken out. Terrance Hallinan said he was a Supervisor at the time the Board had considered the appeal of the Commission’s CU decision and the intent had been to prohibit hamburger restaurants in the Center since they were trying to prevent negative impacts of the Center in the area. Barbara Chionsini submitted for the file a 1988 petition from the neighbors which supports the ZA’s position and opposes the franchise-type fast food restaurants. David Pilpel said his mother was the president of the neighborhood association at the time the planed unit development CU was negotiated and approved, and that a fast food hamburger restaurant would not be consistent with the Supervisors’ conditions of approval. Marian Getz described the difference between and Arby’s and a McDonald’s by describing their web sites. Lt. Larry Barsetti of the Police Dept.’s Taraval Station said the officers of the station are concerned with a hamburger restaurant because they attract the younger set who would cause police problems, and budget problems have reduced the number of officers available to provide security when car racing is going on in the area. Christopher Niglio of Merced Manor thanked Commissioner Shoemaker for requesting a rehearing and said he is against any action which undermines the CU conditions. John Hentz, president of the Lakeshore Improvement Club, said his group has tried to reach an agreement with the owner outside the CU but now he supports the ZA and he asked for strict compliance with the conditions. Patricia Frank explained a petition from the students of Lowell High School; the petition said that fast food restaurants promote bad eating habits and life styles and cause litter problems. Mario Pilpel said he opposes high volume fast food restaurants and that the Planning Director has assured him they would not be permitted. Ray Koobation said there is already McDonald’s litter in the area from people who buy fast food elsewhere and eat in their cars and leave the containers of the street. James Stark said the issue is not menu but venue. Adena Rosmarin said she opposes the process and people are entitled to sunshine on it; she feels there has been a bait and switch here which is objectionable. Karen Niglio thanked Commissioner Shoemaker and said she is baffled why the hearing had been rescheduled and that the same people who supported the CU are here to defend it. Anne Marie Conroy said she is speaking as a private citizen and that the owner should seek a new CU authorization to modify the conditions if they have problems with them. Pat Skain said she wants to maintain the character of the area and that there is a difference between a hamburger and a sandwich. Supervisor Tony Hall thanked the Board for agreeing to hold a rehearing, and said that a low-volume sit-down restaurant would be acceptable to the neighbors whom he has listened to. Carter Heeming who does leasing for the shopping center objected to the ZA’s position, and said that he’s frustrated because he has tried to meet with the neighbors to negotiate but he has not had a response from them.
No public comment for the Appellant.
(5) APPEAL NO. 03-026
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MARK HOLLANDER, Appellant(s)
vs.
TAXI COMMISSION, Respondent
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Appealing the revocation on February 3, 2003, of taxi medallion No(s). 881.
RESOLUTION NO. 2003-03.
FOR HEARING TODAY.
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ACTION: Upon motion by President Chin, the Board voted 5-0 to reschedule the appeal to June 25, 2003 at the request of the parties.
SPEAKERS: None.
(6) APPEAL NO. 03-028
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OLLIVER LOUD, Appellant(s)
vs.
TAXI COMMISSION, Respondent
|
Appealing a Public Convenience and Necessity Finding & Decision dated Feb. 6, 2003, that taxi service in the City and County is being sufficiently met by the currently authorized 1,381 taxi permits, and that the authorization of any additional permits is not warranted.
RESOLUTION NO. 2003-06.
FOR HEARING TODAY.
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ACTION: Upon motion by President Chin, the Board voted 5-0 to uphold the subject Public Convenience & Necessity Finding.
SPEAKERS: Naomi Little, Executive Director of the Taxicab Commission, gave an explanation of the Commission’s Finding that is made annually to determine whether more medallions are needed to serve the public, and that all data she has collected indicates no additional medallions are needed at this time. Olliver Loud, Appellant, asked the Board to overrule the Commission and issue more medallions so that he can get one because of the high cost of driving, and his need for the steady income a medallion would give him.
No public comment for the appellant.
Public comment for the Taxicab Commission: Barry Taranto of the UTW said that there are 2,340 people on the medallion list ahead of the appellant, and that it is hard to make a living driving and that many drivers have quit. Mark Gruberg of the UTW said he sympathizes with the appellant, and that without a medallion a driver can’t make a living.
(7) APPEAL NO. V03-012
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JAMES ESTEY, Appellant(s)
vs.
ZONING ADMINISTRATOR, Respondent
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2815 Diamond Street.
Protesting the granting on January 9, 2003, to David Prowler at Glen Park Market Place LLC, Rear Yard, Parking, Usable Open Space & Dwelling Unit Exposure Variance(s) (proposal may be constructed with 1,440sf of rear yard in the southeast corner of the property where 4000sf are required; no parking spaces for the nonresidential uses where 14 are required; 1,454sf of usable open space and some of the open space areas with minimum dimensions of 4.5 feet and 8 feet where 1,714sf of usable open space with minimum dimensions of 6 feet for private open space and 15 feet for common space are required; and with 6 of the proposed 15 dwelling units to not have windows facing either a public right-of-way or a Code complying rear yard.
VARIANCE CASE NO. 2002.0124V.
PUBLIC HEARING HELD & CLOSED MARCH 19, 2003.
FOR FURTHER CONSIDERATION TODAY.
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[Please note that the Board, by direction of the President or motion and vote of a majority of the Commissioners, reopen the hearing on this matter to hear sworn testimony from members of the public who were unable to attend the March 19, 2003 hearing because the anti-war demonstrations occurring at Civic Center prevented their access to the meeting, and to allow the parties to rebut any new testimony.]
ACTION: Upon motion by Commissioner Shoemaker, the Board voted 4-1 (Vice President Harrington dissented) to uphold the variance(s) with Negative Declaration findings as read into the record by Commissioner Shoemaker.
SPEAKERS: Gary Pike said that 90% of businesses in the area are opposed to the parking variance and the project, and that the 5 requirements for a variance have not been met, especially 4 and 5. David Golden said that what has not been addressed is that there was once a gas station on the site although there was some discussion at the Planning Commission about a station next door, and that the approval process for the project should start over. Brian Avery said that the accuracy of the traffic study in the Negative Declaration is at issue, and it is inadequate with 10 intersections close by that pose a danger to the young and elderly. Michael Yochum said that he is baffled by the variance process which seems to be slanted in favor of the applicant, and that a loading dock should be required here even if it’s not required by the Code. Susan Cobb said there is a need to address the toxic problems, and then complained that the project plans changed after the public had first seen them. Peter Warfield said he opposes variances, and that this project is a bad deal for the library and the City. Elizabeth Hughes said a creek runs through the property and it may be impacted by the toxics on the site but no one has checked it. Fred Olsen said that everyone wants a grocery Store but parking is the issue since there is a traffic hub for people commuting to area businesses. The parking lot has a high turnover rate and the loss of the existing parking spaces will have a dramatic effect on the local businesses; he said there are many creative ways to solve the problems at issue. Tom Huber described his experiences with the Glen Park Association about this project, and said the public was not included in the process. Charlie Stevenson said he feels the burden of proof should be on the variance holder and not the appellant since the variance holder must how the 5 requirements for a variance have been met; he also said that there seems to be blind acceptance of the project; he asked the Board to deny the part of the decision regarding off-street parking.
Craig Nikitas, PD, described the CEQA process as it applies to the project and said that a loading dock is not required here, and also explained the City’s transit first program that is in the Charter. James Estey, appellant, summarized his opposition to the granting of the variance, and said he is concerned with the tome of the Dept. and feels it’s wrong that the burden is on the community to prove that there are problems here and that the project is not consistent with the eight priority policies in the Planning Code. David Prowler, variance holder, summarized the history of the procedural approvals of the project.
(8) APPEAL NO. 02-100
|
CANADIAN AMERICAN OIL CO., Appellant(s)
vs.
ZONING ADNMISTRATOR, Respondent
|
1868 Van Ness Avenue (Ben’s Shell Station).
Appealing a Cease & Desist Order dated May 24, 2002, addressed to Equilon Enterprises LLC & Canadian American Oil, that the subject property is being used for operation of an off-street parking facility without benefit of a Conditional Use (CU) authorization, in violation of Planning Code §’s 171 & 209.7(c).
FOR HEARING TODAY.
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ACTION: Upon motion by President Chin, the Board voted 5-0 to reschedule the appeal to May 14, 2003 at the request of the parties.
SPEAKERS: None.
(9) APPEAL NO. 02-176
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SIMON KONG & YING-AH KONG, Appellant(s)
vs.
ZONING ADMINISTRATOR, Respondent
|
2114-2118 Mission Street.
Appealing a determination dated August 22, 2002, addressed to Van Ly, that no additional group housing or dwelling units could be added to the subject property since the number of dwelling units alone exceeds the density limit under the Planning Code, and that Conditional Use Application No(s). 2001.1119C requesting a parking exception to add group housing units could not be approved under Planning Code requirements.
FOR HEARING TODAY.
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ACTION: Upon motion by President Chin, the Board voted 5-0 to uphold the subject determination.
SPEAKERS: None.
(10) APPEAL NO. V03-003
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BONNIE DEMERGASSO, Appellant(s)
vs.
ZONING ADMINISTRATOR, Respondent
|
3196 Pacific Avenue.
Protesting the granting on January 6, 2003, to Dan Phipps Architects (Subject Property Owner John Conlin), Rear Yard Variance (on single-family house: construction of an addition at the basement, 1st and 2nd floors at the northeast corner of the rear of the existing building in the required rear yard).
VARIANCE CASE NO. 2002.1008V
FOR HEARING TODAY.
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ACTION: Upon motion by Commissioner Shoemaker, the Board voted 5-0 to uphold the subject variance.
SPEAKERS: Craig Nikitas, PD, described the project and why the variance has been granted. Bonnie Demergasso, appellant, described how the project will have a negative impact on her property and cause shadowing and block her light and air and invade her privacy. She said that there will be a DR hearing on the alteration permit and that she hopes to get back to the good faith negotiations they had several months ago. David Cincotta, attorney for the variance holder, said his client has been trying to work this out for two years and also feels that the five requirements for a variance have been met. Mary Conlin, subject property owner, explained their need for additional space for her family.
No public comment for either side.
(11) APPEAL NO. 03-029
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JENNIFER & SIMON MILLER, Appellant(s)
vs.
DEPT. OF BUILDING INSPECTION, Respondent
PLANNING DEPT. APPROVAL
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655 Head Street.
Protesting the issuance on Feb. 3, 2003, to Vessie Bailey, Permit to Alter a Building (on single-family house: addition of new deck and staircase to the 2nd floor of building, and a 3-inch concrete slab at the rear of building).
APPLICATION NO. 2003/02/03/6573.
FOR HEARING TODAY.
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ACTION: Appeal withdrawn by the appellants.
(12) APPEAL NO. 03-030
|
GARY VARUM, Appellant(s)
vs.
ZONING ADMINISTRATOR, Respondent
|
727 Moraga Street.
Appealing a determination dated Feb. 4, 2003, addressed to Gary Varum, that since there is adequate frontage on Moraga Street to permit access to, and development of the lot, and since the proposed development indicates direct access to Moraga Street only, and the Planning Commission has denied direct access to the public stairway, the front property line and the appropriate location from which to measure the permitted height for buildings on the lot is the center of that portion of the lot fronting on Moraga Street and not on the public stairs.
FOR HEARING TODAY.
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ACTION: Upon motion by Commissioner Sugaya, the Board voted 5-0 to uphold the subject determination.
SPEAKERS: Craig Nikitas, PD, explained the Code process for measuring the height of buildings and how it is done on the subject site, which is on the public right of way. Gary Varum, appellant, described the effect of measuring the height of his building are the planners want, which leaves him half a story short; he asked the Board to overrule the determination and allow him to measure the height with his method so that he can have the full height that other people have and not lose a story for his proposed building.
Public comment for the ZA: Will Kwan said that the appellant is reading the plans wrong and that the elevation is actually 541.93 and not 547.93 as measured on Mr. Escobar’s house. The proposed building will be four feet higher than the down sloping building; he said the previous owner measured from the curb.
No public comment for the appellant.
There being no further business President Chin adjourned the meeting at 10:05 p.m.
________________________ __________________________________
Arnold Y. K. Chin, President Robert H. Feldman, Executive Secretary
Transcripts of these hearings can be obtained from Ms. Claudine Woeber, the Official Court Reporter, 506-0430.
