Meeting Information

PRESENT: President Arnold Chin, Vice President Sabrina Saunders, Commissioners Carole Cullum, Allam El Qadah and John McInerney.

Judith Boyajian, Deputy City Attorney; Lawrence Badiner, Chief of Neighborhood Planning, Planning Department; Laurence Kornfield, Chief Building Inspector, Department of Building Inspection; and Robert Feldman, Executive Secretary for the Board.

Annette Snyder, the Official Court Reporter, swore in all those who intended to testify during the meeting.

(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: 1. Patricia A. McColm requested that the Board adopt rules regarding confidentiality and prohibiting acceptance of ex parte materials by the staff. 2. Tay Via, attorney for Lisle & Roslyn Payne, neighbors of the permit holders in Appeal 00-018, heard March 15, 2000, asked the Board to suspend its rules and allow her clients, who are not principals in Appeal 00-018, to file a Request for Rehearing in that matter to allow them to present alternative plans for the project. 3. Jeremy Paul, agent for the Van Wagoners, the appellants in Appeal 00-018, urged the Board not to set aside its rules so that the neighbors could request a rehearing for the reason that they will be able to appeal the permit upon its issuance, and the alternative plans proposed by the Paynes were in evidence at the hearing. He noted that the Board’s decision was consistent with the Planning Department staff recommendation to the Planning Commission.

SPEAKERS: 1. President Chin announced that Commissioner Cullum was present but not well and that he requested that those testifying be sensitive to that fact. Also, he asked that Item 13 be called early because Commissioner McInerney must be recused and without Commissioner Cullum it could not be heard. 2. Commissioner Cullum said she would attempt to stay for the entire calendar in spite of her illness. 3. Commissioner McInerney moved that the Board direct the staff to calendar Tay Via’s request to set aside the Board rules to allow her clients to file a Request for Rehearing in Appeal 00-018; the vote was 1-4 for his motion and that ended the matter.

ITEM A: Letter from Raquel Fox, attorney for Frank Daijo, appellant requesting for the second time rehearing of Appeal No. 99-073, 470 - 25^th Avenue, permit holder Hugo Villavicencio. Hearing July 14, 1999. Upon motion by President McInerney, the Board voted 4-0 to RECUSE Vice President Chin because of a conflict of interest. Then after testimony, upon motion by Commissioner Cullum, the Board voted 3-1 (President McInerney dissented) to overrule the department and deny the permit. 4 votes being necessary to overrule a department, the permit was UPHELD. Request for rehearing October 13, 1999. Upon motion by President McInerney, the Board voted 5-0 to RECUSE Vice President Chin because of conflict of interest. Then upon motion by Commissioner Cullum, the Board voted 3-1 (President McInerney dissented) to grant the request for rehearing. Four votes are needed and the motion failed. The request was DENIED. Notice of Decision and Order released October 18, 1999. Request for suspension of rules January 26, 2000. Upon motion by Commissioner Cullum, the Board voted 4-0 to RECUSE President Chin. Afterwards, upon motion by Commissioner Cullum, the Board voted 3-1 (Commissioner McInerney dissenting) to SUSPEND THE RULES and set aside its October 13, 1999 decision denying the request for rehearing, thus giving the appellant another 10-day period to file a second request for rehearing.

ACTION: Upon motion by Commissioner McInerney, the Board voted 5-0 to RECUSE President Chin, who left the room at 6 p.m. Upon motion by Commissioner El Qadah, the Board voted 4-0 (President Chin was recused) to GRANT the Request for Rehearing. The rehearing was set for May 24, 2000.

SPEAKERS: 1. Raquel Fox, attorney for appellant Frank Daijo, in Appeal No. 99-073, requested for the second time that the Board grant a rehearing for the reason that she had not been served with a copy of the permit holder’s response prior to the hearing of July 14, 1999, so she had no opportunity to respond to it. 2. Hugo Villavicensio, permit holder, said he doubted that Jeremy Paul had failed to send a copy of his response to Ms. Fox, and he reviewed the history of his ownership of the property. He said he was trying to make the building safe for tenants and their visitors. 3. Joe O’Donoghue spoke in support of the appellant and said that due process required that the Board grant a rehearing in this case.

ACTION: After discussion, upon motion by Commissioner El Qadah, the Board voted 5-0 to GRANT the Request for Rehearing. The rehearing was set for May 24, 2000.

SPEAKERS: 1. Judy West, appellant/requestor, requested that the Board grant a rehearing since she felt that the new acting Zoning Administrator may reach a different conclusion and she does not want to go through the variance process. 2. Larry Badiner, Chief of Neighborhood Planning, PD, representing the acting Zoning Administrator, said that minor variances of a 10% discrepancy with Code standards, can be handled without a hearing.

(4A) APPEAL NO. 98-052

(4B) APPEAL NO. 98-127

ACTION: This case was WITHDRAWN by the appellants prior to the meeting.

ACTION: This case was RESCHEDULED to May 17, 2000 prior to the meeting.

SPEAKERS: 1. Paul Sakamano, Urban Forester, Department of Public Works, said that there were no cuts or diseases on these two trees and that they had caused fairly significant damage, which he described. He said it was a burden of being a property owner to take care of old trees. 2. Sharon Fertitta, appellant, described the damage done to the property by the two trees and asked the Board to allow her to replace them with a more suitable species. Public Comment in Support of the Department: 3. Carolyn Blair, Chair, San Francisco Tree Council, said it was not true that tree roots damaged sewers, but that sewers with holes admitted roots. She encouraged the Board to uphold the denial and save the trees, adding that she feels the City should take care of its trees not just cut them down. 4. Jeremy Paul, neighbor, said he was familiar with these trees and asked the Board to address the interests of the trees. 5. Arthur Chang said that trees add value to property and he urged the Board to preserve these two trees.

ACTION: After discussion, upon motion by Vice-President Saunders, the Board voted 5-0 to UPHOLD

SPEAKERS: 1. Sgt. William Coggan, Legal Division, San Francisco Police Department, reviewed the history of this appeal and reported that the department had revoked the permits in January, 2000, with no appeals filed, making this appeal of an earlier suspension now moot. 2. Timothy Gomes, attorney for appellant, said his client was out of the country and that the revocation may have been flawed by lack of notice to the owner. He had not represented the owner at the January hearing. He felt that the current appeal was not moot. NO PUBLIC COMMENT.

ACTION: After discussion, upon motion by Commissioner McInerney, the Board voted 5-0 to GRANT

SPEAKERS: 1. Paul Wong, agent for co-appellant Kwan Wong, said that blockage of sunlight to rear yards was the key issue here, and the fruit-bearing peach tree he planted 15 years go would be shadowed by the proposed new two-family home. 2. Elizabeth Trigonis, co-appellant, said she had not received the packet from the developer and that she feels the project will be very bad for her home and her children who play in the yard. 3. Dan Sullivan agent for permit holder, said that any miscommunication was unfortunate but hat he had followed all the regulations and sent proper notices as required. He said that the permit was validly issued and asked the Board to uphold it. 4. Larry Badiner, Chief of Neighborhood Planning, PD, said that the proper Section 311 notices had been sent out and no discretionary review had been requested. As a key lot it is bound to affect other lots and it was unfortunate but so. NO PUBLIC COMMENT.

ACTION: After discussion, upon motion by Commissioner McInerney, the Board voted 5-0 to GRANT

SPEAKERS: 1. Ray J. Martelli, appellant, said that the Planning Department gave him a terrible time and that he wants a little consideration now. Eight windows will be shadowed by the addition and the permit holders will not settle with him, while the Planner is hostile to him. 2. Mark Brand, agent for permit holder, said he had offered to meet with the appellant but was told that the appellant would oppose the proposed additional story no matter what, and then he said he would rely on his papers. 3. Larry Badiner, Chief of Neighborhood Planning, said the Planning Commission heard the matter and voted not to take discretionary review and approved the project. He said additional housing units are desperately needed in the City and this addition will only be about five feet higher than the adjacent property. Sunlight is not protected for private property under the Planning Code and the Planning Commission found the project compatible with the area. NO PUBLIC COMMENT.

(10A) APPEAL NO. 98-207

OVERRULE the Zoning Administrator’s Determination with a FINDING that there is no 3^rd floor, and a FINDING that no Conditional Use Authorization is needed for the 2^nd floor, and a further FINDING that "office-use" on the 2^nd floor is a formerly permitted use.

SPEAKERS: 1. Larrry Badiner, Chief of Neighborhood Planning, PD, described the history of the Neighborhood Commercial zoning districts since their enactment during the 1970’s, creating zoning controls for different levels of buildings, and a conditional use process to legalize certain uses at certain levels of buildings. He said that appellant’s attorney had just informed him that the subject building was only two occupied stories over a basement with an attic and that if this were true that the department would reverse its position. 2. Shona Armstrong, attorney for appellant, described the subject building, an old Victorian, and its history of use floor by floor. She said her client would seek conditional use authorization to legalize their use on the two stories over the basement. She gave her analysis of the relevant Planning Code provisions and explained how this situation complied with the Planning Code and should be allowed to continue. 3. Charlene Folsom, executive director of appellant PACT, explained the program of PACT which makes student loans to minorities. NO PUBLIC COMMENT.

OVERRRULE the Zoning Administrator’s Determination with a FINDING that there’s no 3^rd floor, and a further FINDING that the subject property is a 2-story building over a basement with an attic.

SPEAKERS: Same as Item 10 (A).

ACTION: After discussion, upon motion by Commissioner Cullum, the Board voted 5-0 to UPHOLD the

SPEAKERS: 1. Larry Badiner, Chief of Neighborhood Planning, PD, explained why the variance application had been denied, and the Health and Safety violations reported three months ago. THE APPELLANT DID NOT APPEAR AND THERE WAS NO PUBLIC COMMENT.

(12) APPEAL NO. 99-190

ACTION: After discussion, upon motion by Commissioner McInerney, the Board voted 3-2 to UPHOLD

SPEAKERS: 1. Larry Badiner, Chief of Neighborhood Planning, PD, explained how the Determination was arrived at based on the Police Department finding that the use was not adult entertainment and the previous interpretation of the Planning Code that the size of the facility and not been abandoned. Only if the floor area had been modified and been reduced could it have been deemed an abandonment of the enlarged area requiring a conditional use authorization for an increase now. 2. Aaron Peskin, president of appellant Telegraph Hill Dwellers, explained that the Planning Department was wrong in approving this project without conditional use authorization for three reasons. First, he described the overwhelming evidence that the use is "adult entertainment." Second, the incontrovertible fact that nowhere in the Planning Code does it say that size of a use cannot be abandoned, and that here was a clear case of abandonment for more than three years, therefore requiring a new CU to authorize the additional 1400 square feet added for this business, just as it was required for the project at 524 Union Street. Third, he said that the 1400sf expansion exceeded the 500sf or less allowed as not significant and that a CU was necessary to allow the public to testify. 3. Joe O’Donoghue, agent for "BoysToys," said that the present use, deemed "other entertainment" by the Zoning Administrator, was appropriate and that the appellant was wrong in claiming it was something else other than a restaurant with other entertainment, for which the definition was very broad. Here the building was intact and the smallest in the neighborhood and he didn’t understand the appeal. Public Comment for the Appellant: 4. Patricia Cady, speaking for herself and her neighbors on Vallejo Street, said she wanted the right to have input in a civil discourse on this big building. 5. Joan Wood, with Telegraph Hill Dwellers since 1962, but speaking for herself and not for the group, said she objected to the violation of the rule and that this case set a bad precedent.

6. Rose Chung said it was an issue of fairness and equity and that no one should be above the law.

7. Doug Comstock said he lives in the Haight-Ashbury but was interested in this case because the permit holder seemed to have gotten around their process. He is most concerned with the proximity of this business to a school and with children going by it every day, seeing signs which degrade women. He said the neighborhood needs to be heard. 8. Donald duBain said he learned of the matter from the article in the Chronicle and does not understand why this is not deemed adult entertainment. He felt the owner had misrepresented the business to the Zoning Administrator. 9. Alfred Fontes Jr. said that to be fair a CU process was needed because everyone concerned should participate in the decision. 10. Paul Switzer said he lives in North Beach and was astounded to hear Joe O’Donoghue speaking for the owner and his comments were disingenuous. He thought neighborhood input was important in this type of case. 11. Merle Goldstone said this was her third time at the Board to testify on this appeal since she had reason to protest the disregard for the public interest by "BoysToys" and by the Planning Department. She was shocked with this clear violation of the Planning Code. Here the City should be fair and follow the rules and not set a bad precedent. 12. Gerry Crowley said that Telegraph Hill Dwellers was not en elitist group. She said she lives in an alley in the flatland while President Chin lives on the hill. She said even her nine-year-old granddaughter refers to this business as a "strip club." Public Comment for the Zoning Administrator: 13. Dan Sullivan said he worked for Planning 26 years and use size cannot be abandoned. The remedy the opponents had was to seek a change in the Planning Code to make abandonment of size possible. 14. Stefano Cassolato said that Broadway needs to be revitalized and businesses have to be creative. Here the food was delicious, drinks are offered and he saw mixed couples welcomed there. He thought the opponents were not being fair. This is Broadway in North Beach and not Pacific Heights and the place has much class and taste. 15. Art Fogel said he lives in the Marina and has been interested in this business since it was announced. He said it is a first class operation and he was really amazed. It is not a typical run-down, shoddy place for cheap thrills, but rather first class dining in a unique atmosphere. It does not change the neighborhood and it is an asset for the City.

McInerney, who left the room at 6:30 p.m. Afterwards, after discussion, upon motion by Commissioner Cullum, the Board voted 4-0 (Commissioner McInerney was recused) to GRANT the alteration permit.

SPEAKERS: 1. Francis Basa, appellant, described the height of the building as exceeding seven stories with the roof exits and asked that it be lowered to provide room for emergency exiting from roofs of adjacent buildings. He added that he had not been notified of the height of the building. 2. Jim Reuben, attorney for permit holder, said that the building was 75% completed and has been under construction since September 1999. This appeal is of a minor alteration permit only. He said the appellant had notice of the project through the environmental review process which showed the height of the building as 51.5 feet. The subject permit is just to enclose roof top boilers and to change the siding. The neighbors all had Section 311 notice as well with plans attached and letters from the permit holders. Public Comment for the Appellant: 3. Claire McGhee said the building before was used for car inspections and was concerned about lack of notice for projects in commercial districts. 4. Larry Badiner, Chief of Neighborhood Planning, said that the Polk Street Neighborhood Commercial zoning encourages retail over parking but that this project still had parking in the building as well as retail at ground level.

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Robert H. Feldman

Executive Secretary