Meeting Information

PRESENT: President Arnold Chin, Vice President Sabrina Saunders, Commissioner Carole Cullum, Commissioner Allam El Qadah, and Commissioner John McInerney who arrived late at 6:54 p.m.

Judith Boyajian, Deputy City Attorney; Lawrence Badiner, Zoning Administrator, Planning Department; Rafael Torres-Gil, Senior 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.

SPEAKER: President Chin asked the audience for a show of hands of those who intended to speak on Item 9 and announced it wouldn’t be considered until at least seven in order to allow Commissioner McInerney to arrive.

(3) REQUEST FOR REHEARING: 407 Connecticut Street. Letter from Andrew M. Zacks, attorney for appellants Allan and Lorraine Thompson, requesting rehearing of Appeals 98-136 and 98-137 heard on April 12, 2000. Upon motion by Commissioner Cullum, the Board voted 3-2 (President Chin and Commissioner McInerney dissented) to UPHOLD the department and DENY the demolition and building permits.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-0 (Commissioner McInerney was absent) to CONTINUE the matter to May 31, 2000.

SPEAKER: Andrew Zacks, attorney for appellants, asked for a continuance to the next meeting with five members present.

ACTION: After discussion, upon motion by Commissioner Cullum, the Board voted 3-1 (President Chin dissented, Commissioner McInerney was absent) to CONTINUE the matter to October 4, 2000.

SPEAKERS: 1. Lawrence Alioto, attorney for appellant, reported that he has appealled the Superior Court judgement against his client and expects to win on appeal. He said the case presents novel issues of law of child care and provisions of the Health and Safety Code, and a stay on the eviction action remains in place, so he requested a continuance for six months.. 2. Andrew Zacks, attorney for permit holders, said he felt this request was just delaying the inevitable. His clients have been trying to get the permit for 18 months. The court upheld his detainer action and he felt the Board should decide this appeal now and uphold the permit.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-0 (Commissioner McInerney was absent) to CONTINUE this matter to August 30, 2000.

SPEAKER: The Executive Secretary asked the Board to continue the matter to August 30, 2000 as requested by the parties who have begun settlement negotiations which may mean no hearing will be necessary.

ACTION: After discussion, upon motion by Commissioner El Qadah, the Board voted 4-0 (Commissioner McInerney was absent) to GRANT the permit on CONDITION that a trellis be placed on the subject property deck or shared property line, or upon other agreement of the parties.

SPEAKERS: 1. Elizabeth Dohrman, appellant, explained that all she opposed was the lower deck which impinges on her privacy due to the different elevation she is on. She was out of the country when it was built and she had no notice from her neighbors of how large the deck is so she was allowed a new appeal period. She is devastated by the deck. 2. Joseph Sweeney, permit holder, explained the chronology of events regarding the project and said the deck is almost completed except for a railing. He explained what measures he had taken to mitigate the impact on the appellant. Photos show greenery between the houses in the yard. He described support from the neighbors on the west and the north. 3. Rafael Torres-Gil, Senior Building Inspector, DBI, reported on the notification made in the case. 4. Larry Badiner, Zoning Administrator, said that the project was too small to trigger Section 311 notification requirements under the Planning Code.

ACTION: After discussion, upon motion by Commissioner McInerney, the Board voted 5-0 to GRANT the permit with the adoption of Section 311 and Prop M FINDINGS to be incorporated by reference from the Planning staff report.

SPEAKERS: 1. James Johnson spoke for the appellant group and asked that the Board require modifications to the project to bring it into harmony with the other houses being built on the former Grant school site, of which this is the last lot to receive a permit. He said that unlike the others, the permit holder would make no concessions to his group, and that the house will look odd in context although it may be a good design if standing alone. 2. Gail Schecter, agent for appellant group, described the serial petition with 50 names she submitted in support of the appeal. She said the design is unfair to the neighbors since it takes advantage of an unnatural elevation from the old playing field which should be lowered. 3. Alice Barkley, attorney for the permit holders, submitted a letter from the Pacific Heights organization in support of the project. She explained how the proposed house will fit in with the other new houses which are all unlike one another. 4. Ed McEachron, architect for the permit holder, explained how the drainage problem of the site was being addressed. 5. Larry Badiner, Zoning Administrator, reported that the Planning Commission had voted not to take the project under Discretionary Review and had approved the plans with no changes. He said the Planning staff had recommended approval. Public Comment for Appellants: 6. Dorothy Kitt of 2801 Broadway, to the north and below the site, described her concerns about the drainage problems generated by the removal of the asphalt from the site. She asked the Board to impose conditions that will prevent drainage problems. 7. Judith Wilson said she was one of the six tenants who are affected by the project and were not present when the plans were shown at the association meeting She said that their group had negotiated with the other owners and wanted to do the same with the permit holders. The project will block her light and air, so she requested more setback.

8. Linda Romary of 2919 Pacific, #10, on the third floor, said her view will be gone and the permit holders lack consideration for the neighborhood in not respecting the 35-foot height limit and a 25-foot setback. Public Comment for the Project: 9. Susan Lowenberg said that she could not be happier with the design for the house and that she could not even remember from her years on the Planning Commission that the Pacific Heights Association ever supported a project as in the case here.

ACTION: After discussion, upon motion by President Chin, the Board voted 5-0 to UPHOLD the Zoning Administrator’s determination with FINDINGS submitted by the attorney for the determination holder.

SPEAKERS: 1. President Chin addressed several questions to Judith Boyajian, Deputy City Attorney, concerning the issues raised in this appeal. 2. Judith Boyajian, Deputy City Attorney, said that the Planning Director had the legal authority to assume the function of Zoning Administrator, that he had the authority to rescind the determination of Mary Gallagher in December 1999 before the determination became final at the end of the 15-day appeal period, although once a determination is appealed to the Board of Appeals it can no longer be modified or rescinded, and that the Superior Court had upheld the Board’s 1998 decision on a previous similar determination. 3. Gerald Green, Director of Planning and the Acting Zoning Administrator who wrote the subject determination, said that he had rescinded the earlier determination because, after analysis of the history of this matter and review of the judicial decision of the last determination appealed to the Board, he found it to be contradictory to the 12 years of City policy and precedents by Robert Passmore. He explained how the tower is necessary for emergency communications of SFPD and the SFFD for protection of the western portion of the City. He said the findings of the 1966 Conditional Use resolution covered the changes in use of the tower over the years, and that the present Discretionary Review policy will allow the public to comment on all aspects of the permit presently under review by the Planning Department. 4. Christine Linnenbach, attorney for the appellant group, using the overhead projector, explained how the original 1966 Conditional Use resolution of the Planning Commission only covered the ten TV and four radio stations and that the many score antennas and two underground fuel tanks added since without proper permits were not covered and a new Conditional Use authorization was required by the Planning Code. She described the history of the tower and its permits and alleged that the tower now posed a health and safety hazard to its immediate neighbors and the City for which those concerned needed a Conditional Use forum to find relief from the City. Public Comment for the Acting Zoning Administrator: 5. Debra Stein, attorney for the determination holder, Sutro Tower, Inc., explained how the original Conditional Use resolution allowed the many technical and broadcasting upgrades over the years and advised the Board that all forums had rejected the appellant;’s arguments, including the Superior Court in December 1999. She asked the Board to uphold the subject determination. 6. Ronald Van Buskirk, attorney for the determination holder, said that the Superior Court had upheld the Zoning Administrator’s former determination by Robert Passmore and that all the earlier determinations had been upheld. Adding digital TV equipment was not a significant change in use justifying a new Conditional Use authorization. He is confident that the recent court decision will be upheld on appeal. 6. Eugene Zastrow, general manager of Sutro Tower, Inc., described the health and safety measures voluntarily undertaken to insure safety to the neighbors, including review by an expert structural advisory committee, and measurement of radiation within 1000 feet with the Health Department which allowed less than 15% of that allowed under federal standards, with more structural upgrades being planned and a physical test to be done. 7. Robert McCarthy, attorney for determination holder, explained the 1966 resolution language and how it covers the additions made over the years to the tower, including the new means of communication. He said the Planning Commission in 1966 had been prescient in its language. He showed large photos of the tower in 1974, 1986, and 2000 to show how it has not changed in appearance from a distance. Public Comment for the Appellant: 8. Aaron Peskin, President of the Telegraph Hill Dwellers, read a declaration by Mary Gallagher, the former Zoning Administrator whose determination in December had been rescinded by Gerald Green, the Director of Planning, which gave a narrative of events concerning her determination and resignation. She wrote that she had followed all instructions of the Planning Director in reaching her determination. 9. Jon Ridenour said that no one had mentioned the diesel fuel in underground tanks and their proximity to reservoirs and that the state and federal officials had no knowledge of these tanks since there had been no building permits filed for them until he had informed the engineer working on a reservoir retrofit program. The tower owners had evaded the permit process when installing the tanks. 10. Christopher Beaver of Friends of Noe Valley quoted Supervisor Leland Yee’s question to Gerald Green at the recent meeting of the Public Utilities and De-Regulation Committee on this very subject as well as Deborah Kearny’s remarks about Look Out Mountain antennas in Colorado and the high incidence of brain cancer there. Supervisor Yee had asked if 10,000 antennas had been added to the tower would that trigger a new Conditional Use process and that Gerald Green had answered "no." 11. Elizabeth Mettling said that the bureaucracy is to serve the public and that when a public official is fired as in the case of Mary Gallagher, something is terribly wrong. 12. Doug Comstock, President of the Coalition of San Francisco Neighborhoods, asked people in the audience to hold up their signs showing their neighborhood association names, all of whom support the appellant. He said the tower had been out of control from its beginning and should be expected to follow the law. He said it is built on what was supposed to be a green belt. 13. Liddy Kelley said that the people should be represented in determining appropriate land use, so that families can be raised without threats to safety. The issue is love of humanity and it will not die soon. She recommended a scientific panel as in England to advise of the siting of antennas away from schools, and that this was a case of radiation without representation. 14. Daniela Kirshenbaum of the Pacific Heights Association asked who will say the Board did the right thing in the event the tower falls. 15. Mary Helen Briscoe from the Haight-Ashbury and Stanyan-Fulton area said she is concerned that the tower is not following the Codes. She said the Conditional Use process is costly but that citizens needed to know about the tower and its affects on them. 16. Marc Solomon showed a communicators device and said that democracy and the planning process in the City is broken. He said there are special rules for people who can afford lawyers and lobbyists and that the Federal Bureau of Investigation is following the problem and hoped the Board was also. 17. Rae Doyle of the Greater West Portal Neighborhood Association said he and his group were in support of the appellant. 18. Siu Ling Chen, formerly of the City Attorney’s Office, said that the only issue is whether the new building permits required a new Conditional Use authorization. She said that in 1988 a new Conditional Use was required and the application was disapproved for new antennas. She said that there is a visual impact from antennas and equipment added to the tower that can be seen by the people living under the tower. She said the current clutter of antennas and equipment on the tower was not authorized in 1966. She asked the Board to apply the Planning Code which requires Conditional Use for utilities in residential neighborhoods. 19. Claire McGhee said she supports the appellant and that replacement of the old tower needs a Conditional Use process now. She said that six booms on the tower were installed without permits and these are not just flags but are heavy. 20. Hiroshi Fukuda of the Richmond District listed recent disasters and said we could have one here, since the tower is quite old and needs more care. The old should slow down but this old tower is taking on more work. He said he felt we should be prudent and help the tower and that safety of the tower is for the people and the old tower needs to be studied. 21. Mary Russo McAfee reminded the Board of the 1995 sewer collapse, a disaster, though no one died. All of the houses on 24^th Avenue could have been lost. Here the Board has the power to take precautions concerning another utility and to avoid another disaster.

22. John Barbey of the Western Addition group said the issue is the safety of the structure with 200 antennas added to it weighing tons. He said not requiring a Conditional Use process defies simple logic since the tower was built with pre-1966 technology and there is at least a 5% chance of an earthquake greater than the one in 1906. A third-party evaluation is needed to study the effect of the additional antennas and the fuel tanks. He implored the Board to give the public a Conditional Use forum. 23. Joan Girardot, President of the Coalition of San Francisco Neighborhoods, made up of 38 associations including the appellant, said she felt Mary Gallagher’s determination was well thought out and should be reinstated and she asked by what authority did Gerald Green appoint himself Acting Zoning Administrator, and if his conclusion is correct, what limit is there to the number of antennas that can be added to the tower without a new Conditional Use authorization. 24. Bud Wilson, former President of the Greater West Portal Neighborhood Association, currently Vice-President of the Twin Peaks Council, supports the appellant and said the Planning Code provides safety to the average citizen, and the determination gives the public no opportunity to address the Commission on this health and safety issue. He hopes that public space can be restored in the process. 25. John Bardis of the Inner Sunset Action Committee described a meeting 30 years ago of SPEAK that was about the Conditional Use for the tower. Now the problem is that the Conditional Use process is not being followed for an industrial-scale facility in a residential area with underground fuel tanks. This is a graphic case of failure to follow the law. 26. Walter Caplan of Forest Knolls said the case depends on the meaning of the facts and law and he cited a 1985 California Supreme Court case about a Sports Arena and Conditional Use which required the Conditional Use process. It led to Robert Passmore requiring a Conditional Use in 1988 for new antennas. There are limits to what can be added to the tower and they have gone way beyond the limits. We need notice and hearings before we decide things. 27. John Backus of the appellant group said this case of the fox looking after the chickens and he is disgusted by the back room dealing. Public Comment in General: 28. Alice Barkley said she was not for the appeal but she wanted to remind the Board that the 1996 Charter changed the powers of the Zoning Administrator. The role had been independent, but it was decided to be put under the Director of Planning. She voted against it, but it was adopted by the voters. 29. Jules Hummus of the appellant group in answer to a question from Commissioner El Qadah, said that he had a photo of his house showing a piece of metal that fell from the tower, and that one day while walking his dog he saw workmen paving concrete and he was told by them that something fell from the tower and they had been told to pick it up right away.

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Robert H. Feldman, Executive Secretary