Meeting Information

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MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO BOARD OF APPEALS
WEDNESDAY, AUGUST 23, 2000
5:30 P.M., CITY HALL, ROOM 416
1 DR. CARLTON B. GOODLETT PLACE (FORMERLY 301 POLK STREET)

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

Judith Boyajian, Deputy City Attorney; Larry Badiner, Zoning Administrator (ZA); Rafael Torres-Gil, Senior Building Inspector, Department of Building Inspection (SBI, DBI); and Robert Feldman, Executive Secretary for the Board.

Easteller Bruihl, 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. Rafael Torres-Gil, SBI, DBI, reported on his site visit to 1623-25 Noe Street (Appeal 00-096 at Call of the Chair) and described the violations he observed. 2. President Chin directed him to report back in three weeks on the implementation of the safety items required and urged the sleeping room be changed to a room with windows.

2. COMMISSIONERS COMMENTS AND QUESTIONS.

SPEAKERS: 1. President Chin requested the audience to turn off all pagers and cell phones and said he would limit public comment in items 6 and 11. 2. Commissioner McInerney asked the City Attorney whether the Board had jurisdiction over Appeal 00-116 since it appeared to be an appeal of a determination of the Director of Building Inspection and not the Zoning Administrator. 3. Judith Boyajian responded that the appeal was of the revocation of a building alteration permit, which is definitely under the Board’s jurisdiction.

(3) MATTERS FOR CONSIDERATION AND OTHER CORRESPONDENCE:

REQUESTS FOR JURISDICTION:

ITEM A: 4416-4418 - 19^th Street. Letter from Jude and Eileen Laspa, requesting that the Board take jurisdiction over Building Permit Application No. 2000/02/07/1258 issued to Thomas E. Flinn and Kristin J. Peterson for expansion of existing recreation room and bathroom, closet addition, and new interior and exterior stairs on first floor; expand dinette area, demolish and replace existing exterior stairs on second and third floors.

Date issued	June 6, 2000
Last day to file appeal	June 21, 2000
Request for jurisdiction	July 25, 2000

ACTION: This matter was WITHDRAWN by the requestors prior to hearing.

ITEM B: 2855 Scott Street. Letter from Lee and Renee Novich, requesting that the Board take jurisdiction over Building Permit Application No. 2000/07/17/5315 issued to Mitch Menaged for recording drawing permit to reflect as-built conditions for Applications 2000/02/10/1622 and 2000/04/03/6162; lower roof at rear 16’ of building; minor non-structural interior alterations.

Date issued	July 17, 2000
Last day to file appeal	August 1, 2000
Request for jurisdiction	August 2, 2000

ACTION: This matter was RESCHEDULED to September 13, 2000 prior to hearing.

ITEM C: 2836-2838 Washington Street. Letter from Rene E. Peinado, requesting that the Board take jurisdiction over determination by Gerald Green, Acting Zoning Administrator requiring revisions to Building Permit Application No. 9903501 which eliminates the illegally constructed habitable roof deck and associated rail-height walls within the required rear yard and replacement of the "existing parapet wall" designation with "remove unwarranted parapet wall at rear, replace with minimal open railing around roof decks areas NOT in required rear yard."

Date issued	July 7, 2000
Last day to file appeal	July 24, 2000
Request for jurisdiction	August 7, 2000

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to DENY this request for jurisdiction.

SPEAKERS: 1. Rene Peinado, requestor, asked the Board to allow him to file late on a determination by the ZA and said the issue was clear cut and involved the interpretation of the Planning Commission. He said he did not file on time because it was a weird situation and he did not know how to appeal. 2. Larry Badiner, ZA, said Planning had spent extensive time on this case and he urged the Board to not allow a late filing. He said this was a serial permits case which the Board had earlier required to have a single set of plans and permit to cover the whole project.

REQUEST FOR REHEARING:

ITEM D: 1432-34 Kearny Street. Letter from Steve Atkinson, attorney for Nathan and Nan Roth, permit holders, requesting rehearing of Appeal Nos. 00-046, 00-047. Hearing July 19, 2000. Upon motion by Commissioner Cullum, the Board voted 4-0 (Vice President Saunders absent) to REVOKE the demolition and site permits.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-1 (President Chin dissented) to DENY this request for rehearing.

SPEAKERS: 1. Steve Atkinson, attorney for permit holders, asked the Board to grant a rehearing to avoid the manifest injustice of its decision. He said just a single alteration was needed for the shoring or underpinning and there was no harm to the appellants. 2. Tracy Kirkham, co-appellant, urged the Board to not grant a rehearing since there was no new evidence being offered and whatever the other side was offering could have been presented at the first hearing.

(4) APPEAL NO. 00-106

DONALD & LORI REGALIA, Appellants vs. ZONING ADMINISTRATOR, Respondent

[108 San Jose Avenue. [Determination by the Zoning Admin-istrator dated June 28, 2000 that the [project in progress at 108 San Jose [Avenue is suspended until revised plans [and permit are submitted and approved [for the staircase penthouse and the last [10 feet of building depth is limited to a [height of 30 feet, with Section 311 [notification requirements to be met for [these revisions. [APPL. NOS. 9814346S & 9922299S. [FOR HEARING TODAY.

ACTION: Upon motion by Commissioner McInerney, the Board voted 5-0 to OVERRULE the subject determination.

SPEAKERS: 1. Larry Badiner, ZA, admitted that his department was in error as to the height of the last ten feet of the building and he withdrew that portion of the determination. He asked the Board to uphold that portion of the determination about the stairwell penthouse which he felt had not been properly noticed to the neighbors. 2. Lori Regalia, co-appellant, described the process her family has suffered through since their house burned down and they have sought a permit to replace it. She said the delay and expense that this determination will cause could be devastating to them. 3. Jim Keith, agent for the appellants, commended Planning for withdrawing part of its determination and explained the penthouse situation and how it is necessary for fire fighting. He said the notice given was proper and when Planning was asked if additional notification was necessary they said it was not. He displayed the final approved plans which show the penthouse. 4. Rafael Torres-Gil, SBI, DBI, reported on his site visit to the building and said that probably only 6 inches of height could be taken off the height, since they have minimized it. Public Comment for the ZA: 5. Zelko Simoni, owner of the building across the street, said he had received no notices for this project but noticed it when framing going up and it seemed huge and the penthouse would be visible from 24^th Street and is obnoxious. Public Comment for the Appellants: 6. Kevin Spiers said he thought the previous speaker opposed the project because he wanted to buy the land. 7. Lynn Hazen said she is an operator of a small day care facility nearby and urged the Board to allow the appellants to complete their building. She felt the new building looks great in and out. 8. Raquel Andreatta said she can see the building’s back and urged the Board to allow its completion. 9. Sarah Merlini said she felt the appellants should be allowed to finish their house.

10. Marjorie Escobar said the building looks fine and she asked the Board to allow it to be finished.

11. Robert Lopez said the penthouse is not blocking views and that he felt the building should be finished. 12. Kevin Curran, a contractor, said that there is only one cry-baby but the appellants should be crying since they jumped through all the hoops and have built to the approved plans, with the City admittedly at fault. 13. Bernie Curran said that after the tragedy that one person can get DBI to back pedal.

(5) APPEAL NO. 00-032

DAVID BAKER & JANE MARTIN, Appellants vs. ZONING ADMINISTRATOR, Respondent

[337-339 Shotwell Street. [Determination by the Zoning [Administrator dated February 16, 2000 [that denies request to designate [combined office and storage Limited [Commercial Use space as one [commercial space; denies request that [the apartment area be 375sf; denies [request that the stables/carriage house [footprint be reduced to its original [dimensions of approximately 20 x 25 [feet; and denies request that the [stable/carriage house be used as a [workshop. [PUBLIC HEARING CLOSED AFTER [TESTIMONY APRIL 12, 2000. [FOR FURTHER CONSIDERATION [TODAY.

ACTION: Upon motion by Commissioner Cullum, the Board voted 5-0 to CONTINUE this matter to October 18, 2000.

SPEAKERS: 1. Larry Badiner, ZA, said that he would grant a variance for this case but there remained a question of where is the original wall for the non-complying commercial space. He said he would issue a new letter to allow modification of the front of the building. 2. Jane Martin, co-appellant, asked what was the difference under the Code of office use and storage use and asked whether they could work on their project.

(6) APPEAL NO. 00-116

GREGORY SMIRIN & SARA SMITH, Appellants vs. DEPT. OF BUILDING INSPECTION, Respondent	[787 Castro Street. [Revocation on July 7, 2000, of permit to [Alter a Building (restore legal [occupancy; remove illegal unit, second [kitchen and occupancy separation). [APPLICATION NO. 2000/04/21/7945. [FOR HEARING TODAY.

ACTION: Upon motion by President Chin, the Board voted 4-1 (Commissioner El Qadah dissented) to OVERRULE the revocation and REINSTATE the subject permit.

SPEAKERS: 1. Rafael Torres-Gil, SBI, DBI, said he had spoken to Deputy Directors Jim Hutchinson and William Wong and had visited the site. He quoted the Building Code section that allows for revocation of a permit if issued in error. He said he saw a pattern of one-family use based on flooring and doorways. Also, he analyzed the permit history, noting the cancellation of one in 1958 that indicated two-family use and the issuance of the same in 1959 indicating one-family use. 2. Andrew Zacks, attorney for the appellants, gave an overview of the permit history showing the house was never anything but a lawful one-family house. 3. Jeremy Paul, consultant to the appellants, gave his analysis of the permit history and the use history from the Polk Directories, and the lack of any record of a parking variance that would have been needed since 1955 to legalize a second unit. Public Comment for DBI: 4. Raquel Fox, attorney for the upstairs tenants, said an old City map shows two addresses for this property, and that the May 31, 2000 3-R report says the lawful use is two-family. 5. Jeffrey Adams, one of the upstairs tenants, said the Board should use the old records and that the identical building next door is clearly two-family. He said the Senior Inspector failed to mention the glazed door between the units is sealed. 6. Jacqueline Cummings, also an upstairs tenant, said they lived in the upper unit of a two-unit building and that she was concerned the permit was based on a misrepresentation and some confusion. Public Comment for the Appellants: 7. Nancy Tucker, who lived in the lower unit read a letter to the Board supporting the one legal unit position and noted that the lack of insulation between the floors suggested it was always just a legal one-family. 8. Lynne Menefee asked the Board to overrule the revocation. 9. Ilse Cordoni said she had legalized a unit in 1978 and that she needed materials from the City but that she knows as a realtor that you can’t rely on the Assessor’s records as to legal use, since they are often wrong.

10. Karen Crommie said the house is one-family and that its twin next door needed a specific permit in 1919 to add a second unit. This case is a bad precedent because a third party has had the building reclassified. 11. Ken Gardner, a real estate broker, described the significance of the 3-R report in transactions and that here the 3-R said lawful use was a one-family house and the buyers relied on it. He said that third parties should not subvert the system. 12. Ira Victor-Spivack said he heard about this case on the radio and by e-mail. He said the appellants are trying to bring the building back to original condition and that people depend on rules and laws and that this revocation was bad for the neighborhood and he urged the Board to allow them to do the work. 13. Kira Eldemir said she has just changed the number of units in her building and she hoped no one would change her classification back.

14. Marilyn Cosentino, the retired head of the Assessment Appeals Board, read a letter from the prior owners to the Board which said when they purchased the legal use was unknown but it was never a legal two-family and they wanted the Board to correct the injustice done by Building Inspection. 15. Ed Morgan said he was concerned with the accuracy of the 3-R report since the owners proceeded in good faith and relied on the 3-R report which they are now told is not accurate. Without notification to the owner the legal use was changed. He wants to know as a taxpayer how the City will handle the liability.

16. Tom Ramm said this was a case of reclassification to two-family use without knowledge of the owners and without meeting Code requirements. His members will now ask him how to legalize units. Should he refer them to the Tenderloin Housing Clinic? 17. Duane Danielsen said the owners went by the book and used experts to research the permit history and are now being punished. They may be exposed to criminal charges under the Rent Ordinance. The THC used their influence to have the permit revoked.

18. Pat Carter with the Small Property Owners supported all the previous speakers and asked the Board to correct this wrong. 19. Sara Smith, co-appellant, thanked the Board for its patience and all those who came to support her. They are first time homebuyers who kept the tenants informed all through the process and they are shocked and surprised by what happened.

(7) APPEAL NO. 00-094

JOHN L. COOPER, Appellant vs. DEPT. OF BUILDING INSPECTION, Respondent	[2857 Divisadero Street. [Protesting issuance on June 8, 2000, to [Allan Kipperman, permit to Alter a [Building (replace existing window with [like kind and size; change 3’-4" window [to 5’-4" at side yard; fill existing window [at side yard). [APPLICATION NO. 2000/06/08/2163. [FOR HEARING TODAY.

ACTION: This matter was WITHDRAWN by the appellant prior to hearing.

(8) APPEAL NO. V00-041

ROBERT & BEATRICE WOOD, Appellants vs. ZONING ADMINISTRATOR, Respondent	[2090 Jackson Street. [Protesting granting on March 15, 2000, [to Ma Estates, Rear Yard Variance to [construct a four-car, semi-underground [garage and one-story building addition [in the required yard of a single family [dwelling. [VARIANCE CASE NO. 98.908V. [FOR HEARING TODAY.

ACTION: This matter was RESCHEDULED to September 13, 2000 prior to hearing.

(9) APPEAL NO. 00-110

JOSEPH FESTINESE, Appellant vs. ZONING ADMINISTRATOR, Respondent

[37 Landers Street. [Determination by the Zoning Admin-[istrator dated June 28, 2000 that the [Zoning Administrator does not have the [authority to grant a lot size variance to [allow four dwelling units on the 3,125 [s.f. lot because Section 209.1(i) requires [3,200 s.f., one unit for each 800 s.f. of [lot area, and the City Attorney has [determined that the proposed variance [would be tantamount to a rezoning of [the lot. [FOR HEARING TODAY.

ACTION: Upon motion by President Chin, the Board voted 5-0 to UPHOLD the subject determination.

SPEAKERS: 1. Larry Badiner, ZA, explained that variances can’t be granted that are tantamount to rezoning and no variance can be granted to make 3,125sf the same as 3,200sf needed for a four-unit building in the RM-1 district. One can’t get higher density this way. 2. Jerry Klein, consultant for the appellant, said that he was trying to find a way to add more housing units in the City and this would be a way to do that. His client wants to legalize a fourth unit since there is adequate parking and the correct zoning, just short 75 square feet of the 3,200sf needed. 3. Joseph Festinese, the appellant, said he wanted to create a unit out of the 1600sf unit upstairs because he needs the money. No public comment.

(10) APPEAL NO. 00-111

ORCHARD HOTEL, Appellant vs. ZONING ADMINISTRATOR, Respondent

[665 Bush Street. [Determination by the Zoning Admin-istrator dated June 26, 2000 that [modification of the off-street parking [requirement for the proposed 10-story [hotel will require conditional use [authorization to modify Planning Com-[mission Motion No. 11619 approved on [March 16, 1989 and a variance from the [Zoning Administrator to allow off-site [parking at 750 Bush Street under a [three year lease with the San Francisco [Parking dba City Park. [FOR HEARING TODAY.

ACTION: Upon motion by Commissioner McInerney, the Board voted 5-0 to UPHOLD the subject determination.

SPEAKERS: 1. Larry Badiner, ZA, explained the history of the conditional use authorizing a hotel in 1989. At the time the Code did not require parking in the district but the applicant included it in the plan and it was his contention that to modify that CU decision the appellant must file a new CU application and ask the Planning Commission to modify the 1989 decision. 2. Michael Thomas, architect for the Orchard Hotel, explained why the owners no longer wanted parking in the building. 3. Ahmad Larizadeh, a Code consultant to the hotel owners, explained the time constraints on the owners and he showed photos of Anson Alley with various vehicles blocking it from different angles. No public comment.

(11) APPEAL NO. 00-112

SAN FRANCISCANS FOR REASONABLE GROWTH, Appellant vs. ZONING ADMINISTRATOR, Respondent	[450 Rhode Island Street. [Determination by the Zoning Admin-[istrator dated June 28, 2000 that [Macromedia is a business service [company with some components that [could be considered light manufacturing [and is a permitted use in the M-1 (Light [Industrial) zoning district under Planning [Code Sections 222, 226 and 890.11. [FOR HEARING TODAY.

ACTION: Upon motion by Commissioner Cullum, the Board voted 4-0-1 (Commissioner McInerney abstained) to RECUSE Commissioner McInerney. Afterwards, upon motion by Commissioner El Qadah, the Board voted 4-0-1 (Commissioner McInerney was recused) to UPHOLD the subject determination.

SPEAKERS: 1. Larry Badiner, ZA, addressed the issues in the appellant’s brief. He said the use was a business service and not office. The ballot measures will clarify it, but until then he will make determinations. This project not yet approved but will go to the Planning Commission. He said Section 320 does not apply and does not speak of computer technology. 2. Sue Hestor, attorney for appellant, continues to claim that this matter should not be heard until the environmental impact report is final. She said she had gotten no documents to support this determination from Planning after several requests; and that this was a bizarre interpretation which says a corporate headquarters is a factory. She said this was actually back office space discussed in the 1980’s. She said under the Building Code it will be an office. 3. Andrew Junius, attorney for determination holder, said he made the request for the determination because the Code is not clear. Multi-media is an emerging industry, and appellant is asking Board to substitute her interpretation for Mr. Badiner’s. Public Comment for the Appellant:

4. John deCastro said he has worked for high tech firms and that they are cubicle farms, just like offices. He said this was a fantasy to aviod Prop M. 5. Gina Lee said she lives in Potrero Hill and she is a senior software start up person. She said this firm will not produce hardware, just works through the internet. She said that most employees will drive to work. 6. Audrey Cole said she has been in software development since 1985, working for large and small companies, and she uses Macromedia’s products. She said to her this is just another office. 7. M. Joseph Schaller, a resident of Potrero Hill and a software consultant for many years, said that he has worked with 80% to 90% of computer companies and that it is a question of the density of the people. Industrial use, fewer people, lower parking requirements; office use, more people and cars, greater parking requirements. 8. Andrew Wood said that Prop K in November by Mayor Brown would define Macromedia as office space. 9. Scott Lee, a resident of Potrero Hill, said that while internet and the web are new concepts, that density and parking are not, and that hiding behind the web for more density and parking is wrong. Macromedia is just like all offices and probably more dense than lawyers’ offices. 10. Joe Boss, a Potrero Hill resident, works for a real estate trust and had experience with a Hewlett Packard building easily converted to accounts’ offices. He said both ballot measures would call this use office. Public Comment for the ZA: 11. Loren Hillberg, general counsel for Macromedia, described the new industry with a new environment for products and services. 12. Mark Brotherton said he is an instructor in e-commerce at San Francisco State University and that the mode of production here is close to industrial production and not like office use. This is not traditional office space. 13. Tony Wessling said the digital industry is a new animal providing careers and jobs. Prop M addressed old City and this new industry is bringing back the old spirit. They are making new tools needed for making business. 14. Ron Kaufman is the developer of 450 Rhode Island and said he has always done office projects, but here, for two years, they have been debriefing Macromedia for their special needs and are planning facility to be brought to the Planning Commission. He said the project will have 545 parking spaces and a transit system, and that the density will be much less than office density. 15. Alastair Mactaggart said he is a resident who lives two blocks away and he welcomed this new factory of today which produces intellectual products.

There being no further business, President Chin adjourned the meeting at 10:31 p.m.

_________________________________
Arnold Y.K. Chin, President

 

_________________________________
Robert H. Feldman, Executive Secretary

Transcripts of these hearings can be obtained directly from Easteller Bruihl, the Official Court Reporter, (415) 576-0700.