Meeting Information

Present: President Arnold Y.K. Chin, Vice President John McInerney, Commissioner Carole Cullum, Commissioner Allam el Qadah, Commissioner Sabrina Saunders.

Judith Boyajian, Deputy City Attorney for the City Attorney (DCA); Larry Badiner, Zoning Administrator, Planning Department; Rafael Torres-Gil, Senior Building Inspector, DBI; and Robert Feldman, Executive Secretary for the Board of Appeals; Official Court Reporter, Easteller Bruihl.

SPEAKERS: None.

SPEAKERS: Commissioner Saunders thanked the Board for their understanding during the past month as she attended her brother during his final illness. Commissioner Chin asked for the cooperation of the public during the evening’s long calendar and the long calendars for the meetings until June 26.

ITEM A: 1479 - 3^rd Avenue. Letter from Larry Badiner, Zoning Administrator, requesting rehearing of Appeal 01-196, Wydler vs. ZA, decided Jan. 30, 2002. Upon motion by Vice President McInerney, the Board voted 4-0-1 (Commissioner Saunders absent) to overrule the subject determination and to adopt the findings submitted by the appellant’s attorney. Appellant: Aton Wydler. Determination: that use of the subject property as a 4-unit residential building is not permitted under the Planning Code, and is not considered to be a legal non-conforming use under Planning Code Sections 180 through 185.

ACTION: Matter rescheduled to May 29, 2002 prior to the meeting.

ITEM B: Taxicab Medallion No(s). 109 & 138. Letter from Mark Gruberg, agent for appellants, requesting rehearing of Appeal No(s). 02-018 & 02-019, UTW et al vs. Taxi Commission, decided April 3, 2002. Upon motion by Vice President McInerney, the Board voted 4-1 (Commissioner Cullum dissented) to dismiss the matter due to lack of subject matter jurisdiction, and directed staff to approve the request for refund of appeal fees. Medallion Holder(s): John Lazar.

ACTION: Upon motion by Vice President McInerney, the Board voted 4-1 (Commissioner Cullum dissented) to deny the request for rehearing.

SPEAKERS: Mark Gruberg of the UTW, appellant, asked the Board to grant a rehearing so that his side can address the issue of jurisdiction and submit materials concerning previous appeals of a related nature. Inspector Suslow, representing the Taxi Commission, said he has no position on the question of rehearing. Philip Ward, attorney for the medallion holder, said that in his view no new evidence was being offered and the appellant had had an opportunity to address the jurisdiction issue and hadn’t done so.

ACTION: Upon motion by President Chin, the Board voted 5-0 to reduce the subject penalty to 2 times the regular fee.

SPEAKERS: None.

ACTION: Matter rescheduled to June 19, 2002 (no vote).

SPEAKERS: None.

ACTION: Upon motion by President Chin, the Board voted 5-0 to reschedule the matter to June 19, 2002.

SPEAKERS: Sergeant William Coggan, S.F.P.D., said that a new permit application has been filed and that the noise officer and the permit officer were present to respond to Board questions. He added that the Department had bent over backwards to allow the use for as long as possible. Jeremy Paul, Consultant to the Appellant, explained the nature of the appeal and its funding by the Art Commission. He described his view of the Department’s actions against all places of entertainment in the district.

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to revoke the subject permit.

SPEAKERS: Laurence Kornfield, CBI, DBI, explained the Building Code provision on applicants for permits being owners of the property or their agents and that if the applicant isn’t an owner or agent that the permit would be revoked or suspended. Jackie Holland, Appellant, explained the TIC nature of the ownership of the building and said there wasn’t a roof deck before and how the deck bothers her since her bedroom is below it.

ACTION: Upon motion by Commissioner El Qadah, the Board voted 4-0-1 (Commissioner Saunders absent) to overrule the subject determination with findings to be adopted at a later date.

SPEAKERS: Lawrence Badiner, ZA, said the dwelling units in a commercial building maybe be deemed accessory uses but not a group housing facility and no live-work units may be approved anymore. Here the living portions are not subordinate to the office-commercial uses. If the Board reads the Code as permitting residential uses and not dwelling units then it might be possible to approve them. Brett Gladstone, attorney for Appellants, said the artists work zone is 75% for work and people are living in 25% of units or less. Most of these tenants have been here for five to eight years.

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to reschedule the matter to June 19, 2002.

SPEAKERS: Lawrence Badiner, ZA, asked the Board to continue the item for thirty days so that he can further consider the issues raised by his determination.

ACTION: Upon motion by Vice President McInerney, the Board voted 4-1 (President Chin dissented) to overrule the Planning Commission’s denial, and grant both permits with the following conditions: a) that the overall length of the building be reduced from 50 feet to 40 feet; b) that the gross square footage of each house not exceed 3600sf including the garage and storage space; c) that the project sponsor provide a street improvement bond for all roadwork; d) that no construction on the project begin other than foundation work until all roadway widening work in front of all 6 lots intended for development is complete; e) that the project sponsor will record an open space preservation easement for all six lots to be approved by the Board on June 5, 2002; f) that conditions of the Structural Advisory Committee be implemented by the project sponsor; g) and that findings be prepared by the appellant’s attorney for adoption by the Board on June 5, 2002.

SPEAKERS: Lawrence Badiner, ZA, said the project sponsors had had clear notice that the applications had been denied and should have asked about why no denial letter had been sent in a timely manner. His staff had not sent notice of the denial to DBI so DBI hadn’t sent anything out that might have been appealed in a timely manner. He said the same project was denied in 1987 for the same reasons that the proposed houses are much too large for the steep site and narrow road to top of hill.

Harry O’Brien attorney for the Appellant, said that under the Permit Streamlining Act the permits are now approved and that he couldn’t notify anyone of a discretionary review hearing that has not been scheduled. Patrick Spiers, Appellant, said this site is more stable than the Knockash Hill site according to the geotechnical professionals. Neil Eisenberg, representing the Edgehill Way Association, the Section 14 Principals, said that the Streamlining Act doesn’t apply in this case because it was the Appellant who asked for the continuations that delayed the City’s action on the applications. Howard Ellman speaking for the Edgehill Way Homeowners Association explained the nature of Edgehill Way which is a private street and not maintained by the City. Greg King of 345 Edgehill Way said the proposed houses are 87% the size of the houses disapproved before and that the proposed houses are over twice the size of those at the top of the hill, thus violating the Residential Design Guidelines. Kristen Johansen said that the important issue was safety and the photo shown shows a truck blocking the street. A fire truck got stuck and had to be lifted out. Tim Colen, President of the Edgehill Home Owners Association summarized the opposition to the project by EHOW. He said there is no indemnity proposed and this is "Guinane II" and it would be prudent to uphold the Commission. Laurence Kornfield, CBI, DBI, said his Department takes no position on these appeals and explained the role of the structural advisory committee of engineers and go-technical professionals in the review of such permit application and introduced Frank Rollo, chairman, who explained the results of the committee’s study and the distinctions between Edgehill Way and the Knockash rock fall slope.

PUBLIC COMMENT FOR COMMISSION AND EDWHOA:

R. Steven Ellis described two landslides on the other side of his home and described the washboard road that is being reconstructed. Ms. Beth Alberts, daughter for Bruce Alberts whose family is responsible for the road behind their home said the piers for the road will extend onto her parents’ property. Joel Luebkeman of 651 Rock Hill Drive said the street is too narrow for emergency vehicles and there is no parking on the street to serve large new houses. Michael McKenna, a real estate broker, said he is generally for development but not here because of lack of vehicular access making the project unsafe.

PUBLIC COMMENT FOR APPELLANT: Pat Buskovich said he has worked on the hill four months and that there was no testimony at the Commission on geotechnical aspects of the project and that there is no geotechnical problem with the project. Elizabeth Naughten said that 80% of the lot will be preserved and there will be four parking spaces for each house. It is not true that this is the same as the Guinane project. It is 23% smaller and doesn’t violate the Residential Design Guidelines. Mike Casazza, a neighbor who lives three blocks from the site, said he has talked to geotechnical consultants and engineers and he supports the project. Margaret O’Driscoll said she is raising three children and was concerned about this project nearby but is now satisfied as to its safety. Bill Mandel said he wants to build on his two lots upslope and it is tough to get approval. He feels builders should have some certainty about the process. He said all the houses and apartments in the City had been built by someone. Barry Kane of 14 Edgehill Way said he had gone through four Commission hearings and three Board hearings to get his permit and urged the Board to approve these permits. He said the EWHOA does not represent all the people on the hill

Diarmuid MacNeill said Spiers Construction is one of the most competent developers and has the ability to do the project successfully and that the widened road will bring more safety. Eddy Gutienez said he lives a stone’s throw from the site and has no objection to the project which will be homes built to scale and for families. James Sangiacomo said he is for the Spiers family which does quality construction. Jim Keith, for the Appellant, said that this proposal is for smaller houses than those proposed earlier and that all the trees outside the footprints of the houses which are 1,500 square feet with the houses fifty feet deep. Neil Eisenberg, attorney for the EWHA said that in addition to the two subject proposed houses there will be four more coming for a total of thirty new bedrooms added to the top of the hill and that the 5,000 square-foot design is too large for the sites. For five years the EWHA has tried to compromise on development of the lots but it hasn’t happened. He asked for a continuance to July 10 to try again. Anything approved now will be a precedent for the other four lots. He said Howard Ellman recommended a street improvement bond so that people building the road will be responsible for it and will warranty the undertaking. Warren Schmalz, architect, said there will be large usable open space provided on the sites.

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to uphold the subject permit.

SPEAKERS: William Ausseresses, Appellant, read his letter in opposition to the project and said that the Section 311 Notice has not been complied with and that no permit was ever issued for the roof deck. Jeremy Paul, consultant for the permit holders, showed an aerial photo to show the subject houses and he said that there are no defects in the issuance of the permit and said that a certificate of final occupancy has been issued for the dormers. He feels this is a retaliatory appeal. Lawrence Badiner, ZA, said the Code requires a parapet in this situation and that a parapet is exempt from Section 311 notification requirements.

PUBLIC COMMENT FOR APPELLANT:

Ellen Tsang of 759 Northpoint said her property abuts the subject property at its back yard, and said the preexisting stairs have been removed and the permit holders never got the permit they should have and the Russian Hill Association never had a meeting about sending a letter to the Board.

NO PUBLIC COMMENT FOR PERMIT HOLDER.

ACTION: Upon motion by Vice President McInerney, the Board voted 5-0 uphold the subject permit with conditions as stated in the settlement agreement between the parties.

SPEAKERS: None.

ACTION: Matter withdrawn by the appellant.

SPEAKERS: None.

ACTION: Matter withdrawn by the appellant.

SPEAKERS: None.

ACTION: Upon motion by Vice President McInerney, the Board voted 3-1-1 (Commissioner Cullum dissented, Commissioner Saunders absent) to uphold the subject variance.

SPEAKERS: Lawrence Badiner, ZA, explained the procedural issues raised by the fact that this property was in a Redevelopment area when it was developed and was a planned unit development (PUD) by the Agency. He explained the notification problem and said he felt the best way would be for the applicant to ask Conditional Use Approval from the Commission for a revised PUD. Leanne Christie, Appellant, said she opposed variance since it leaves only fifteen feet between back yards of the townhouses and the new lot and there are no other five story buildings in Diamond Heights. This configuration will increase the fire hazard since fire equipment won’t be able to get through. John Sanger, attorney for the variance holder said that the variance is justified and all requirements are met. He said some members of the community did attend the various hearings and the fact that this was an Agency PUD is irrelevant since the Agency operates under entirely different rules than does the Planning Department and the ZA.

PUBLIC COMMENT FOR APPELLANT: John Schlenke said larger rear yard is needed to enable fire equipment to get through. He was at the 1992 meeting with Bob Passmore and neighbors were told they would get notices of any changes proposed for the PUD and there was no notice given. He added that former Planning Director Alan Jacobs also said that the 15-foot yard is insufficient. Dusty Eddy said he feels 78 feet is needed at the rear of each unit. He drives past the site every day and is concerned with the preservation of the green open space and with fire safety. Betty Peskin said there are much stronger winds here than in Noe Valley. She said hundreds of people are concerned with these issues and the neighborhood is overwhelmingly opposed to the variance and the 15-foot setback and density proposed.