tv Government Access Programming SFGTV December 8, 2017 1:00am-2:01am PST
parcels at 948, 950 lombard and 841 chestnut street. the project, without objection we will proceed as follows. up to ten minutes for the presentation by the appellant or appellant representative and up to two minutes for speaker in support of the appeal and ten minutes for a presentation from the planning commission and ten minutes for the project sponsor or representative and ten minutes for opposition and up to three minutes for a rebut -- rebuttal. we'll open up the hearing. supervisor farrell. >> supervisor farrell: thank you, this parcel sin district two. supervisor peskin and i spoke beforehand before bringing the appeal forward and he dealt with signatures we had an interest in so i wanted to and we discussed it beforehand and he wanted to
highlight some issues he had with the process itself. so here we are. i will turn it over to supervisor peskin. >> supervisor breed: supervisor peskin. >> supervisor peskin: thank you, madam president, major leagues. without pre judging the pre judging the use i want to thank the individuals to affixed their signatures to allow it to happen and for supervisor farrell for being gracious though it was in his district to allowing the hearing go forth. regardless of the presentations we'll hear and what's in the written record, i want to start at the outset by saying that this is an extraordinary case. unfortunately, not an isolated extraordinary case. but there is incredible historic -- are incredible historic resources in the city.
and we have laws and procedures in place that failed in every single way in this instance. that's not specifically what's before us but i take exception, with all due respect to counsel, for the real party and interest. we cannot talk about those things here today. we absolutely can talk about them because they're part of the history. this was a part of san francisco's pa try moany that was extraordinary. the building that was demolished that the department of building inspection failed at and respectfully the planning department failed at. i have spoken to the zoning administration. i think the zoning administrator could have done a better job and with all due respect to the city attorney and i've had this discussion with supervisor farrell, the fact that was a lawsuit involved in this and yes, it did actually achieve the
largest settlement of its kind in san francisco history also i think is problematic insofar as no member knew about it and was part of it. regardless of how we vote on the matter today, we need to use this as a teachable unit and learning lesson to make sure it doesn't happen again. there was a recent publication about another house also lost as we're having conversations with policy conversations about residential expansion thresholds and section 317 of the code and why the definitions of demolition in the planning code are different from the building code and whether our fines are adequate, i hope this hearing informs that future policy work. it's noted in the moving paper,
as a matter of fact, it was noted the property was unaffordable at $4.5 million and now the finished product has an appraised value over $30 million people would not rip houses like this down if the fines are commensurate to that kind of increase in value. those are the kind of policy decisions i hope this hearing informs regardless of how we vote and regardless of the testimony away hear. thank you, madam president. >> supervisor breed: now we'll have ten minutes for the appellant for the appellant representative to come forward and represent your case. you're the appellant? >> yes, and will be using overheads.
thank you. good afternoon, supervisor breed and members of the board of supervisors. i'm kathleen courtney for the russian hill community association. before you today is the appeal of the conditional use request for lot merger approved by the planning commission august 31. the conditional use authorization was the final step in a five-year process that resulted in the illegal demolition of the willis pope designed resident at 841 chestnut street in district 2. the conditional use for a lot merger was due to the developer adding a 2,000 square foot garage to the site. and it wound up straddling the property line of two lots. this construction was permitted because the planning department
in error, approved the lot merger in 2015. this was just a long list of irregularities and missteps. the reason the project is before you is because the planning department and the developer needed to rectify that error. otherwise, this tragedy would not have been before you. it would have flown under the radar. and governments are gone in its place as the director stated as a replica. since the deed is done and the historic resource has been demolished, since the missteps and irregularities have been [indiscernible] by the settlement of june 7, since a fine has been assessed and the penalty has been paid, the real question is why is this
lot even before the board of supervisors the reason is so a tragedy like this does not happen again. the august 31 planning commission hearing on the conditional use request for the lot was the first time the public was able to weigh in on the project. there had been complaints registered on outside the scope of the permit or illegal d demolition. how did the safeguards fail? there's several related reasons. one, the lack of a consistent definition of demolition in the planning code and the building code. two, a lack of coordination and communication between the department of building inspection and the planning department. a lack of comprehensive
transparent and publicly access able processes. the misuse of a zoning administration administrator interpretation to avoid public notice of action and the access of penalties for such penalties that would dissuade developers who consider them simply the cost of doing business. fortunately, it's this fail in the demolition or what we often see is significant alterations tantamount to demolition occurs regularly in all districts, in all neighborhoods. in the summary dated october 22, john rahm detailed the flawed process in 2012 through the settlement in 2017. the history of serial permits that the director called out 21
and the responses of planning and building inspection staff are noted. it is evident from the permit history approvals were based on incomplete, insufficient or inconsistent information and calls into question the adequacy and experience and perhaps the professionalism of the staff of the departments. the director john rahm, also notes the developer has other ways to achieve its goals. other paths to entitlement rather than use conditional use. mostly the director states and i quote "this case has set a firm president to dissuade developers from circumventing the planning process in the future." unfortunately, that is not true. in october, 49 hopkins avenue in district 8 designed by legendary modernist architect was
illegally demolished while not unknown historic resource the residence was an important part of the city's history and it's under review by an enforcement planner. to be clear, this appeal has no effect on the timing of construction. all the permits have been approved in the settlement agreement. fine. enforcement action did result in a six-month delay in construction while the developer and city attorney negotiated a se sell -- settlement, no wonder neighbors are tired. it has no effect on the settlement agreement. it's a done deal. it's all over. the lot merger, however, was not a subject of the settlement agreement. this appeal is not about the dollar value of the penalty,
it's about a flawed process that resulted in the demolition of an historic resource. planning director john rahm in his brief said there's other ways the developer can achieve the lot merger. the developer is an experienced, well connected real estate developer which boasts on its historic accolades and knowledgeable staff. the same group which managed the design and construction on this site. all of the actions and activities that occurred over the last five years were deliberate. all of them were intentional. nothing was inadvertent. in every perspective the residents is about city agencies profoundly failed process that yieldses
yields yieldses to -- yields to lawyers and developers and process and the process has failed to protect a historic resource and failed the city. a loss like this we in san francisco in the eyes of our many visitors and the residents who love our architectural resources we urge you to review the processes and procedures that led to the demolition of this historic residence. we urge you to remain the status 950 lombard and guarantee its preservation. we urge you to uphold this appeal as a lot merger via a commercial use is neither necessary or desirable.
my neighbors will elaborate on the points. we thank you for your consideration. thank you. >> supervisor breed: thank you, i'm going to pause the time. are you one of the appellants or appellant representative for here to speak for public comment? >> i'm here in support of the appeal. >> supervisor breed: so we haven't called public comment yet so thank you. so is that the end of your presentation? >> i tried to make it as succinct as possible if you'd like know keep talking i'd be delighted to. >> supervisor breed: no, you're the first person to make us so happy by not using the entire time. with that, madame clerk, let's open it up to public comment. at this time for members of the public who want to speak in support of the appeal, please come forward, you'll have two
minutes. if anyone is in support of the appeal, please line up to your right. first speaker. >> good afternoon, supervisor breed, members of the board of supervisors. i'm an architectural historian. i have to commend ms. courtney for a succinct explanation. i'm here to support the peel for the lot merger at 841 chestnut and appeal the destruction of the building. in the report of last june before it was demolished the building was a notable work by a master architect willis polk. like remaining residents by julia morgan and aj brown the property was exemplary the architectural style and only the one of two known examples of
polk's rustic city house designs in san francisco. unfortunately, the illegal demolition destruction of this building is another example of demolition by serial permitting with continual edeveloping permits at the site going back to a 2002 plan to add only a garage and elevator access to this building and much smaller intervention. this speculative development openly sets up incentives for developers to do work for great financial gain at risk of little penalty and applying for standards for reconstruction to the property is insulting. the appropriate standard in this case would have been sure it complied with rehabilitation, repair of existing historic material, using the standards of
reconstruction is a mockery and after the fact attempt to confuse and cover up an illegal demolition and asking to you deny the authorization. thank you. >> supervisor breed: thank you, next speaker, please. i'm sorry, interest was a line of people -- i'm sorry, there was a line of speaker. >> i'm third speaker but in charge of exhibits. >> supervisor breed: thank you. >> president breed, members of the board of supervisors i went to see on micro film we get online. in 2002 to 2011 this was the project on the overhead. it was an overhead and shaft for
an elevator and stair and tunnel under the cliff. it left the cliff behind to chestnut street. in 2011, the owner who had put forward the plans sold the property and from 2011 to 2012 there were several revisions which changed the scope of work. the basement got larger, the cliff was retained and the garage was all the way over on 948, 950 lombard street. it was still a two-story basement with the cliff to the north. this was the last time -- important, the last time planning saw this or reviewed this permit application. from 2014 to the present, came a
series of serial permits and there were complaints from the neighborhood, ten in all from the job site. the complaints were the wall was unsupported. dbi kept the permit applications from going to planning. planning never saw the basement was becoming a full story and the cliff had been removed and what we would have seen from the street still a beautiful shingle building in a garden setting is now a cliff with concrete and steel and glass that faces the street. this is not what ceqa approved -- >> supervisor breed: thank you very much. next speaker, please. >> good afternoon, supervisors. my name is stephanie peek. i live in district two and i'm a homeowner there. i have a graphic.
the graphic is actually from the planning code section 303 and reads the proposed use or feature will provide a development that is necessary or desirable for and compatible with the neighborhood or the community. section 303 requires decision makers to look at the project. >> ma'am, if you can pull the microphone down. >> supervisor breed: we'll start your time over and if you can speak directly in the microphone. >> the section from 303c1. the proposed use or feature will provide a development that is necessary or desirable for and compatible with the neighborhood
or the community. and requires them to look at the requirement for conditional using. and i want to talk about several aspects of the project i believe are critical to understand in order for anyone to make a determination on the development as a whole and be allowed to testify. the permit would legalize the section 317 demolition that allows the project to move to the planning commission and now to you. never went through a 311 public notice process even though demolitions under section 317 do require public notice. the zoning administrator used an interpretation intending to let them replace it without notice. in that instance the room and the building were non historic
and the work was not demolition and the owner came in for a permit before doing the work. in today's case the result of the interpretation is to let developers to demolish the historic building. the public should have received a notice and taken the permit and the financial penalty seems the cost of doing business to ensure multi-million dollar projects are approved would the possibility of conditions or disapproval on the demolition of an historic building. there's a five-year moratorium for illegal demolition of buildings but is never applied because the building department seldom considers them -- [bell] >> is that it? >> supervisor breed: yes. >> is that the entire list?
that's a partial list. >> supervisor breed: thank you. >> i'm john baruso. developers are illegally demolishing houses knowing if caught they can absorb the penalties and still turn a profit. san francisco is world renown for its beauty fades a little with each architectureerasure and the loss of the architecture by willis polk is neither necessary or desirable and as city staff sorted out the
destruction of the polk structure on chestnut, another illegal demolition made news designed by another architect was knocked down in october these two incidents send a simple message. the penalties for unlawful demolition are part of the equation. developers are choosing profit over their duty of our architectural heritage. it hit won't stop without greater alignments between the departments and penalties and more education about the cultural value of the community resources. the austrian architect worked with frank lloyd wright was of a modernist style. and of the five designed 49 hopkins was his first and it's now gone. purchased in january by 49 hop kings, llc, permits allowed for
alteration not demolition and new construction. without their calls dbi would never have known the residence was raised. and due to the complaint log -- >> supervisor breed: thank you, sir. next speaker, please. >> thank you, the previous speaker told you the sordid detail of another demolition of a home destroyed in san francisco. this happens all the time but you don't hear about it. maybe because the houses being demolished in the same fashion are not as prominent as the ones designed by either willis polk or richard noitra but
... had inspected and approved the rough framing. there you have it, this happens all the time and the only thing different about the case is that someone complained about it. another factor in this, is the planning department that ignores the thresholds defined by section 317, which is tantamount to demolition. >> thank you for your comments. next speaker, please. >> good afternoon, president breed and members of the board of supervisors. i live at 2626 hyde, just down the hill from the site in district 2. i'm a former historic preservation officer for the city of san jose and the historic preservation commission. i'm speaking in support ever the appeal. among the criteria for conditional use authorization is
the project's compatibility with the neighborhood and community as well as the determination that it will not be detrimental to the nature of the proposed site. the current condition of the site after the illegal demolition of the polk house appears less compatible than the originally approved project. as stated in today's staff report it does not seem that the inconvenience, expense, necessity of obtaining additional permits, should the cu not be up held, is a convincing argument for up holding the cu. the demolished residence was a rare example of polk's rustic style, blended naturally into the hilltop setting. the replacement project, the amount of concrete on the site does not. i'd like to suggest a condition to be placed on the owner developer and that is city
landmark designation of the remaining cottage referred to as historic throughout the many staff reports, and um -- designation of any other character-defining features on this site. the staff report for today's hearing claims that by upholding the commission's decision to allow the lot merger, this status will remain with the entire property and protect it. i feel the need to point out this was the case when the willis polk house was on the site and didn't protect it. finally, there are two actions i'd like to recommend to help protect against illegal demolitions. that would -- >> if i could ask the speaker to tell us what the two suggestions are. >> supervisor breed: sure. >> the first is to align the demolitions throughout the planning and building codes and second is consideration of the loss, and in consideration of the loss of the polk house, as a loss for the city and county, i
believe there should be a counter to the loss for our historic resources. and one way that the city and county could do that is to appropriate that $400,000 settlement to the historic preservation fund or the understanding and dedication of the city. >> supervisor breed: thank you, next speaker, please. >> interview: good afternoon, mike buehler, president and c.e.o. of san francisco heritage. as noted by the previous speaker, the illegal demolition of 841 chestnut is only the latest if not the egregious. heritage has collected examples of this disturbing trend. they follow a typical pattern. the owner is listed as anonymous llc, such at 841 llc. permit is pulled for minor work, followed by modifications
without plans that expand on the scope of work until the original building is completely eviscerated. in this case, the lack of coordination and communication between the planning department and the department of building construction inspection enabled this historic resource to be demolished without a trace, without an opportunity to mitigate the damage and without public scrutiny whatsoever. this does not qualify as historic reconstruction. no steps were taken to document or preserve the original features before they were "accidentally discarded". although the settlement agreement imposed a financial penalty it does nothing to ensure that the same flawed process won't continue to be exploited at the expense of the city's historic resources were the planning code and building code have different demolition, different requirements. such inconsistencies are not only confusing to the public, but enable speculators and
contractors to evade public scrutiny and destroy public resources without consequence. the fine assessed after the illegal demolition is not effective deterrent. there is nothing that the board can do now to bring back 841 chestnut, but it can take immediate steps to ensure that the historic cottage that remains is press conferenotecte. thank you. >> supervisor breed: are there any other members of the public who would like to specifically speak in support of the appeal, please line up to the right and if not, this will be the last speaker. >> good afternoon, my name is nan nancy your fell, i support the appeal because it allows work out a permit. i wish to point out a trick that the developers use to get around
planning reviews that have doomed other buildings, including this one which represented architectural history. this trick is to have a friendly senior building official perform intake function at dbi rather than have regular staff. the intake person gets to decide who gets to review the application, so it's convenient to have planning look at it when the drawing is different than the application. with the right statements on the forum, no changes in scope of work, the applicant hides the true nature of the project. such was the case at 841 chestnut street. the amount of demolition in the historic structure was submitted in 2015, somehow the revised application had the intake performed by a senior building inspector. this official did not send the application for revision to planning which is what the complaint required. no support of the front wall is
in the complaint, means the project is not respecting the previous approved plans. the scope of work claims that the mov will be complied with, white washing the complaint without knowing what is happening. they hide the true amount of work in the application. this is a way that i learned these tricks when there was a victorian house on jersey street that was allowed to be gutted to the studs out planning review after a 10-year permit was expired. the applicant came back in, had it done reviewed by the deputy, building at dbi and he never referred any of these things to planning. as a matter of fact the permit was submitted and reviewed on the same -- >> thank you, are there any other members of the public who would like to speak in support of the appeal? seeing none, public comment is
closed. we will have a presentation from the planning department. you have up to ten minutes. >> good afternoon, president breed and members of the board. i'm alexander kirby, the staff for the appeal and i'm joined by the enforcement manager and the zoning administrator. i would like to open by emphasizing that the matter before you is whether to uphold or overturn the planning commission approval of a cancel use authorization to permit a lot line adjustment that would allow two dwelling units on a single parcel. the appellant has brought this matter to you surrounding a loss of a significant resource and there is no disputing this did occur. however, the matter of the demolition and reconstruction of was pursued in collaboration with the dbi and the city
attorney office. you may require on the complex history of this case, we ask that the board consider the specific case at hand. the project site is comprised of two adjoining lots on the block, joined by lombardi, jones and the russian hill neighborhood. the proposed project would merge lots 10 and 17 to a lot land adjustment creating 15,735 square foot lot. lot 10 at 950 lombardi street, while lot 17 is developed with a two story, 3740 single family home. street, while lot 17 is developed with a two story, 3740 single family home.
within the zoning district, up to one dwelling unit per 3,000 square feet is permitted. each of the existing lots contains one dwelling unit and two create a single parcel containing two. the two are a historical lot as shown in the sanborn maps. the 1909 block book map and noted in prior historical analyses. the date of the lot is unknown despite research by the planning staff and property owner at the assessor's office. all permits for interior and exterior work complied. no work is proposed under the project. the larger project that spans both of the properties dates back to 2002 when application
was filed to excavate elevator shaft and garage entrance relocating the historic cottage. pardon me, relocate the historic cottage and modify the rear of the polk residence. due to structural concerns the project was significantly revised in 2009 with a new environmental application. proposing to construct the same subgrade garage and elevator shaft and construct a new rear horizontal addition, leaving the design intact. this work was proposed across both lots. and was approved by the planning department in march 2011 and issued by dbi in october of 2011. a new building permit was filed and proved in november 2011 to correct the record and validate the approved permit at both properties due to the fact that one permit had been approved for two parcels.
in 2012, the property changed ownership to current ownerer and it was revised to complete extensive interior renovation. relocate the garage and expand the proposed basement. categorical exceptional was give ton the work and excavation was within the volume and depth reviewed. the permit was approved by planning in september of 2014. while there is a case of serial permitting, the building was not demolished via the permits. they merged lots 10 and 17 in 2015, which planning staff approved based on incomplete information which noted the legal authorized use of chestnut as unknown. the property owner subsequently
obtained several building permit applications for work on the project site, depicting one lot, despite the tentative map approval of the merger not being finalized. work completed under the permits includes the excavation of subgrade space with interior access, via 841 chestnut street and garden terrell lis. while this work is within the area of the single lot, it is in the required yard of each lot if treated as separate parcels. during subsequent enforcement review in mid 2016, the department determined that a conditional use authorization was required for the merger and the application was returned to planning by the department of public works. conditional use authorization application for the merger was submitted in february 2017. in july 201, a complaint was filed with the planning department citing illegal business sign, demolition without planning approval, alteration of a historic
building and expansion of the nonconforming use at 950 lombard which is the location of the cottage. in november, the applications were suspended and the planning department issued notice of enforcement to the property owner for the demolition of the historic resource. construction was suspended. on december 30, 2016, revised set of plans was submitted to the department clarifying the completed scope of demolition. at this time, planning staff determined that the project was not a case that could be abated through standard enforcement processes. outlined in the planning code, nor could the demolition be reviewed via ceqa. due to the impossibility of abating the egregious violations, the planning department referred to the case to the city planning department.
the city attorney determined that a significant penalty should be imposed for the destruction of this important historic resource. and that the planning department would provide oversight for all remaining work at the property. in may 2017, the property owner settled on penalty of $400,000 in addition to the superior cort injunction requiring they abide by all permit requirements and the planning department review. the civil penalty is the largest levied on a single family property in the planning department history and it was no way intended to reflect the loss of the lost resource. the action taken by the planning department and city attorney office set a firm precedent to dissuade developers from circumventing the planning process in the future. in late may, the suspended permits were released, june 8th, the zoning legalized the demolition of the single-family dwelling as the assessed value of the property was well beyond
the thresholds of affordability and it was exempt by section 317. the associated permit was approved by planning department staff the same day. the approved scope of work was to reconstruct identity cal to the historical structure. the project under appeal is exempt under ceqa, pursuant to 317. on august 31, 2017, the commission conducted public hearing and approved the conditional use authorization to allow the two dwelling units on the single lot. if the planning commission's decision is overturned, the property owner would be required to seek further entitlement, including variances for all previously approved structures that straddle the existing property lines. these are required removal denied and likely significant
alterations if approved. further, any such actions will be appealable by the public and the property owner. further delaying the project that has been under various levels of review since 2002. while the property has an unfortunate history, there are benefits to the lot merger. one additional unit could be feesably added rather than the five that are currently feasible. second, due to historic status with the 1907 cottage, the entire property is historic and any work would be subject to review. ms. courtney has expressed that the -- may seek to subdivide into lots. if the planning commission is upheld and the merger granted, the property owner would be able to seek and justify a variance.
in addition to seeking a subdivision approval to from the department of public works requiring further planning review. any new dwelling units would require cus, including public notification. the department -- should i finish? >> can you wrap up the recommendations? >> yes, the department recommends that the board up hold the decision in approving the authorization. by doing so, you would retain the historic layout of the two lots. by the same family who commissioned polk to commission the resource. the board would protect the cottage structure and limit further expansion of the project site. the department believes it would make the proposal necessary and desirable. we're available for questions. >> colleagues, you want to ask them now? all right, we'll have up to ten minutes for the project sponsor
or their representatives. president breed, supervisors, good afternoon, i'm with the rueben rose, representing the property owner. this property has been vacant since 1992. so as of today it has been more than 25 years since anyone lived at this property. the current owner purchased the property in 2012 and before construction for the project commenced, the buildings had deteriorated quite a bit due to two decades of abandonment. the current owner intent was to restore the buildings. there is a long history to the property and the permit history is complicated. i'm not going to go into those details because it is more than comprehensive covered in a few minutes. there are many details, there are two sides to every story, including in this case, the lack of intent, how permits were issued, how construction occurred, including how the building was held for 12 months
at a significant cost in time and effort to safe it. and how deteriorated conditions were found and documented during construction. perhaps in retrospect things could have been done a bit differently by everyone involved here. however, in an effort to move forward we entered into universal settlement agreement with the city in early june with respect to all issues related to the renovation permit and entitlement of the properties. today, we're before you on appeal of cu that would allow two existing units to be located on the sing the lot as result of the lot merger. it recognizes the site as it has been known. based on deed history with more than 100 years, the lots have been owned by a single owner. that is the same today. there are older documents that suggest many years ago the site
may have been a sing the lot, including historic sanborn map that shows the site as a single lot without the boundary in between. the lots have always been used as a single site with the smaller cottage along lombard and the primary house on chestnut. the lot approved with the larger house, along chestnut street cannot be accessed by cars and pedestrians. almost 20 years arc the prior owner had proposed excavation of a tunnel from chestnut that would have provided access to that site but that proposal was not pursued. the building has been accessed from lombard street and the current project for which construction is nearing colleagues, include a driveway from lombard street that formalizes access between the two lots. regardless of the project history and everything related to that, the cu which is on
appeal today, is more of a technical judgment that will result in the configuration being more consistent with the physical conditions and the historical ownership and use of the site. we respectfully ask you deny the appeal and up hold the cu today. >> thank you, are there any members of the public who would like to sneak opposition to the -- speak in opposition to the appeal? you have up to two minutes. line up to the right. seeing none, public comment is closed. the appellant will have three minutes for a rebuttal. >> thank you, president breed. i'm mr. butler. the 2011 applications never received a 311 notice. typical project gets alteration permit on a pink form and before that permit is issued by dbi,
311 notice is required. if the work is to expand the building on the site. in this case, the permit was issued on october 11, 2011, and only in november on the 4th, were 311 materials submitted by the previous owner. so it's impossible for a permit to issue prior to the 311 or said another way, that permit was not good. the permit was issued in error. unfortunately, the neighbors appealed it, rather than waiting for the 311 to issue and then they settled with the previous owner. so here we are today, no public hearing since 2000 -- potential since 2012 and all the permits submitted since have been built on the earlier approvals, 2002, 2011 and then the 2014 permit.
that's the permit they should build. that's the last time planning saw this project. and there was still a cliff in front of the building. it was not a three-story building, it was a two-story from 1908 with a garage that was barely visible, certainly not as advise frbl the public right of way as it is today. the attorney for the developer says that it had been vacant for 25 years. the building had a slate roof. the building was water tight. from what we can see, and there are photographs, there was one place where a roof leaked, but otherwise the slate was in good shape. it was their obligation, members of the board, to rehabilitate this building. that was their obligation in exchange for all of this underground space.
from their plans, it's not clear the extent of the underground space, but 3500 square feet for a garage is a little excessive and when you see how it appears from chestnut street, how it's 12 feet and a half lower than the main floor of the building, that makes the lower story a story. no longer a basement. those definitions have meaning to the building code. and so if you go back and look through the permit history, they never asked for the addition of the story. it was always a basement. we would like you to uphold the appeal. we would like to you make condition of appeal they have to build what was in the 2014 plans. >> supervisor breed: thank you. and with that, we will close the hearing. and this matter is in the hands of the board of supervisors.
supervisor peskin. >> supervisor peskin: thank you, it's unfortunate that the department of building inspection is not here today, because as we've heard, the failures come in many places. and by the way, regardless of what counsel for the property owner says, the settlement agreement, but most specifically the lawsuit clearly speaks to intention. but it also speaks to city error. on page 4 of the lawsuit, it says on june 9, 2016, and again on june 15, 2016, defendant applied for a permit from dbi to remove dry rot and compromised framing from the exterior of the property in effect seeking to acquire permit for the destruction of the exterior.
buried in language contemplating the exterior, the permit application should have been referred to the planning department for review, it was not and the department issued the permit for the already completed destruction of the property in error. it goes on to say, that despite a suspension of the permit from the department of city planning, the defendant continued rebuilding the demolished exterior of the property for quite some time. so the defendant is far from blameless in this matter. and indeed, ended up paying this record settlement, which when the billionaires are kicking out the millionaires, $400,000 is just not enough money to dissuade people from doing this in the future. i want to salute ms. kerby who has taken this matter seriously and been professional. i want to speak about the
conditional use. look, planning -- the rule of the road is, you cannot approve a structure that spans two legal lots of record, but you did. and that was also in error, right? i mean that shouldn't have happened either. as to -- if i could ask my staff to come up and utilize the overhead for a second. i think one of the fundamental issues here is what mr. butler just spoke to, which is with all due respect mr. sanchez and we've had this conversation offline, the lengths the department goes to interpret the code and you as the zoning administrator and you the charter have that wide authority to interpret the code, but with all due respect, the length that you go to, to not give public notice and in reviewing not only your action memo which shows us
that something that supervisor sheehy knows as well as i, that the section 317 of the code is broken, but you also go to great lengths to use the exact replacement language. well, guess what? this is not an exact replacement. your dormer exception does not apply. if you can start -- ok. yeah, so let's put the first one. pull that up. thank you. so that is the old building. go ahead. show the new one. that is the new building. that entire bottom floor, that infinity pool on the left, that should trigger section 311, but if that doesn't -- next picture please -- there at the top, both of these images you see the profile of the old house. next picture, please. now, what was actually built and you see all of that yellow,
those top yellow ones don't meet your dormer exception. that's not in the profile of the original thing. that should have triggered 311 notice and all of these smart, caring people who care about our historic resources when the system is failing whether it's dbi, whether it's planning, whether it's the ceqa function that saturday categorically exempt, no it wasn't. but that should have triggered 311 notice. the problem is we all acknowledge -- and planning acknowledges and my colleagues acknowledge that serial permitting when you've got slick lawyers and a culture that wants to say, yes to all permits, serial permitting is a problem. but instead of thwarting it, all we do is reward it. so our system is broken. i grant that the vast majority of these permits should have
been referred from the department of building inspection to planning and were not. and mr. huey and his staff are not here today, but i think it's time, with all due respect, the department is going down the wrong road on residential expansion thresholds. and, colleagues, this is not about creating more housing. there was no more housing created here. there was just a $4 million property that became a $30 million property. this is not about adding housing. and the same thing is true at the 49 hopkins case. it's not additional units. this is not a developer saying i want to take the underutilized site and build more units. it's not a conversation about housing, it's about a culture, a pattern and practice and series of codes that need to be fixed. i would like to work with both departments to see if we can come up with something, because this has been going on for
years. as we heard from the appellant, this is the most egregious manifestation of it in modern times. i want to say to the city attorney, i realize this was not your case, this comes out of code enforcement team, but when you have something like this, and that district supervisor and a supervisor long interested in preservation of the pattry moan of the city and i realize this does not come to the rules -- government audit and oversight committee i sit on, but we can change the thresholds for approval and there is, i think, a duty that you have in an extraordinary case like this, so see whether or not you're settling in appropriate way that really does what we want to it do, which is to discourage, if not eliminate this kind of behavior that we saw in this case. having said all of that, i want to thank the appellants who did
this on their own time, this is a huge pain in their behind to do this. i want to thank ms. courtney, and all the folks who testified for putting in the amount of time to tell the city we blew it, coming and going and thank you for that discharging that responsibility as citizens. but having said all of that, i wanted to use this case today to make these comments, to say this is really important. as the city is growing and changing there are really neat things that we need to hang onto. and this is one of those neat things. and so is that house and examples that you saw on the sheet of paper. this is why organizations like san francisco heritage came to be, because justin herman, the redevelopment agency were knocking down buildings like this in the fillmore and the
western addition and that's how heritage came to be. that's how books were created in the 1960s. but having said all of that, i wanted to use this as a teachable, learning moment. my staff and i will endeavor to do that. colleagues, i hope when we perfect that legislation and conform the definitions in the planning and building code, or merge the building department with the planning department so they stop doing this number, you know, he said, he said, but having said that, i will move item 18 moving the conditional use authorization because i think this hearing served its purpose and again i want to thank you who signed to bring in before the body. thank you to supervisor farrell for allowing this to go forward