Meeting Information

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

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

SPEAKER: None

SPEAKER: President Chin thanked the staff for the annual report and proposed Budget for FY2002-2003

ITEM A: 1060 Green Street. Letter from Donna DeMatteo, attorney for Mary Skinner & Sharron Wood, Requestors, asking that the Board take jurisdiction over Building Permit Application No. 2002/01/04/6252. Permit Holder: Will Oswald. Project: remove damaged plaster in various parts of building caused by work covered in BPA No. 2001/09/25/9189; walls and floors to be opened up for inspection by structural engineer; no structural work to be performed.

ACTION: Upon motion by President Chin, the Board voted 5-0 to deny jurisdiction.

SPEAKERS: Mark Janowitz, attorney for the requestors, said the appeal hadn’t been filed in time because he had just gotten with the case at the end of January and didn’t receive the file until January 28, and the request letter was submitted February 1. His client had stayed in the building until she couldn’t bear it anymore. Molly Brennan, attorney for the permit holder, said she had last week to review this request and that it is inaccurate as there are seven units in the building that are legal; it was built in 1907 and converted to seven units during the 1920s. She said that there will be no prejudice to either landlord or tenant if jurisdiction is granted. Lawrence Kornfield, CBI, DBI, said that there are seven legal units and the permit is incorrect. He said if asked to by the Board the Department would require that a new permit application be submitted that would clear up the vagueness of the subject one.

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to uphold the subject permit with the conditions as stipulated to by the principals.

SPEAKERS: None.

ACTION: Upon motion by President Chin, the Board voted 5-0 to uphold the subject permit with the conditions as stipulated to by the principals.

SPEAKERS: Alex Saldamando, appellant, explained the agreement that has been reached by the parties and asked the Board to uphold the permit and attach the agreement as condition to approval. Larry Badiner said that since this is a private agreement that it would not be appropriate to require that it be recorded on the land records as a notice of special restrictions.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-0 to recuse President Chin. Then, upon motion by Commissioner Saunders, the Board voted 4-0-1 (President Chin absent) to uphold the denial of the subject variance. Then, upon motion by Commissioner Saunders, the Board voted 4-0-1 (President Chin absent) to rescind the previous motion to uphold the denial. And lastly, upon motion by Vice President McInerney, the Board voted 4-0-1 (President Chin absent) to continue the matter to the indefinite calendar (Call of the Chair).

SPEAKERS: None.

ACTION: Upon motion by Commissioner El Qadah, the Board voted 5-0 to continue the matter to March 6, 2002.

SPEAKERS: None.

ACTION: Upon motion by Commissioner El Qadah, the Board voted 5-0 to reschedule the matter to August 28, 2002.

SPEAKERS: None.

ACTION: Upon motion by Commissioner El Qadah, the Board voted 5-0 to reschedule the matter to March 13, 2002.

SPEAKERS: None.

ACTION: Upon motion by Commissioner El Qadah, the Board voted 5-0 to reschedule the matter to March 13, 2002 with the understanding that there will be no more rescheduling of this case. .

SPEAKERS: Mimi Lee, speaking for her parents, Sec. 14 principals in Appeal No. 01-222 objected to rescheduling the hearing to March 13, 2002 for the reason she and others had with difficulty showing up and would be inconvenienced if it is put over which shows a lack of respect for the neighbors of the project. David Cincotta, attorney for the permit holder, said that Ms. Lee had agreed to a continuance and then changed her mind. He had tried to reach her but there are three addresses for her and he needs time to review the shadow study that has been submitted. He said the additional time would allow the parties to reach an agreement.

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

SPEAKERS: Judith Hoyem, appellant, said that all she is asking for is a bulge in the fence so she can get furniture and garbage cans out of the basement. She is now blocked by the fence. She asked the owner to move a fence pole so she can live with some degree of use but he has refused to move it. Joseph L. Schatz, attorney for the permit holder, said that the Board’s jurisdiction is limited in this case because it deals with an easement over real property. While the courts have jurisdiction and the appellant has a remedy in court and could get a TRO if necessary. He asked that this matter be stayed until the litigation threatened by the appellant’s lawyer was complete. He described the history of his client’s efforts to demolish the building in order to build a new one in its place.

PUBLIC COMMENT FOR APPELLANT: Ms. Anne Farrar of 4048 17^th Street gave a history of the houses and the Planning Commission’s action in disapproving the proposal for a replacement building.

NO PUBLIC COMMENT FOR PERMIT HOLDER.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-1 (President Chin dissented) to overrule the subject determination with findings to be prepared by the appellant’s attorney.

SPEAKERS: Larry Badiner, ZA, said that commercial uses in the NCD should serve the surrounding area as set forth in definitions in Planning Code. An internet company will not serve the surrounding area. Their web site indicates it is a global software business and because it has a "waiting area" in the office doesn’t make it a neighborhood serving use. Charles Olson, attorney for the Appellant said the opposition is trying to get out of their lease and the determination lays foundations for a nightmare for all the NCD buildings around the City. The Code doesn’t mandate neighborhood-serving only. Here the company sells products and is not limited to anyone. The old definition is too narrow today since neighborhood people use the internet. The definition should expand to current reality.

PUBLIC COMMENT FOR ZA: Steve Atkinson, attorney for the Determination Holder said a use should not be allowed in an NC district unless it serves the neighborhood. Because you sell to anybody doesn’t make it neighborhood-serving retail. He read dictionary definitions of words. The ZA has the authority to decide uses and he can’t ignore the Code when it is clear.

NO PUBLIC COMMENT FOR PARTIES.

ACTION: Upon motion by Vice President McInerney, the Board voted 5-0 to uphold the revocation of the subject permit.

SPEAKERS: Larry Badiner, ZA, explained that the permit was revoked at the request of the Planning Department, because the proposed use appears to be an Adult Entertainment business and it is within 1,000 feet of other Adult Businesses. The permit says it is to be general retail and his staff was mislead and the Planner noted on permit that it was not to be for "adult entertainment". Joe Wood, attorney for appellants, said that his clients had worked without permit improperly. The friend doing the work thought that permits are not need for the interior, non-structural work he was doing and there was no subterfuge here. He described how the location near BART and hotels is expected to generate customers for this retail lingerie shop in which models will stand on a platform, with no chairs or tables, no alcohol, no cubicles or rooms, a small cover charge and security to keep out people 18 or younger. He said his clients have no connection with Chez Paree nearby.

PUBLIC COMMENT FOR ZA: Brad Paul said he can’t imagine couples shopping for lingerie here when they can go to Victoria’s Secret and other retailers. He said this business sounds like it is a strip club since it has a cover charge, never required for legitimate retail shop. Glenda Hope said the area is saturated with adult entertainment business and twenty-six massage parlors. She asked the Board to not saddle the neighborhood with another adult entertainment business. Brother Kelly Cullen said this is a serious issue and we should follow the law. He said the permit holder has an X-rated business a block away from this site and the law requires a new adult use to be at least 1,000 away from other such uses. Kathleen Mullen said that at the community meeting the appellants couldn’t answer questions about the need for a cover charge for the alleged retail shop and the use of models in lingerie makes it an adult entertainment business. Roscoe Hawkins said he has worked in the community for a long time and there are three elementary schools here now. He said the area needs support and uses which have a positive impact.

PUBLIC COMMENT FOR APPELLANTS: Michael Bovo said he is the owner of the abutting building and said that if the proposed business stays within the law it should be allowed to operate. He intends to lease space to a restaurant. He said that it is a bad area and it is hard to get any tenant. He said the appellants are taking a chance opening any business at all on this site.

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

SPEAKERS: Steven Murphy, appellant, said he lives across the street and that Balboa Terrace is a planned development built in the 1920’s with CC&Rs which run with the land and is bounded by St. Francis Wood and public land. Houses are restricted to two stories only. This proposal will create a bad precedent and should be rejected. The smallest lot will have the biggest house on it with 66% coverage and will be out of character with the neighborhood and in violation with the CC&Rs. David Leigh, permit holder, described the major problems with the foundation that led to the renovation project and the needs of his extended family. He said he has made sixty revisions to meet the requests of the Planning Department and the neighbors, and he asked the Board to uphold his permit which had been approved by the Planning Commission.

PUBLIC COMMENT FOR APPELLANT: Esther K. Penticuff, for the appellant, said she opposes proposal because it will block her sunlight. She added that other neighbors are respectful but not the permit holder.

PUBLIC COMMENT FOR PERMIT HOLDER: Roger Hsu said he has lived in Balboa Terrace fourteen years and supports the plan which was revised many times. Hon Ching said he has eye problems and asked his daughter Becky Chan to read his letter. He described the appellant’s efforts to oppose the plan as harassment of the permit holder. Shao Ling Kao said she had not gotten notice of the appellant’s plan when he was renovating and she supported permit holder’s project.

ITEM A: Proposed Board of Appeals Departmental Budget, fiscal year 2002-2003. For public hearing, consideration and adoption.

ACTION: Upon motion by President Chin, the Board voted 5-0 to approve the proposed budget.

SPEAKERS: No speakers.

ITEM B: Proposed ordinance to delete Code requirement that Board of Appeals appoint an Official Court Reporter to attend meetings. §11 of Part III of the Municipal Code. For public hearing, consideration and adoption today.

ACTION: Adopted 4-0 on motion by President Chin.

SPEAKERS: John Sanger spoke in opposition to the proposed legislation that will delete the Code requirement for an official court reporter to attend all Board meetings since transcripts are essential for appeals of Board actions to court. He feels it is the most efficient way to obtain transcripts.