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tv   [untitled]    August 16, 2013 4:30pm-5:01pm PDT

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alternative by an independent body to make decisions, i have to say, a lot of the decisions by this body were totally absurd when i have seen a lot of the evidence which seaways to the issue that i think it's fair that members of the public who has some evidence, who has a permit because we pay, it says here we pay a fee to be able to participate in this process, well, refund the fees to everybody or the fact that use the fees properly by having the full utilization of this body that every other permit holder that has a permit, liquor permits, zoning permit, entertainment permit, conditional use permit, that has the ability to come before this body should have the same ability, it shouldn't be different, but things have changed, chris hayashi and her staff are doing a much better job and have better tools to come up with better records so
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i think it is important to maybe look at the hearing officer's decision, decide when you accept it or send it back rather than point blankly just saying that we're not going to accept it, and my only concern, if there's more evidence, it should be allowed and i think that's the one port that's the important part here is that if there's new evidence by somebody who has heard something, that should be able to go back to the hearing officer because this body may not have all the information and how the taxi industry operates. >> thank you. is there any other public comment on this item? i don't see any, commissioners. >> okay. >> i'll start. i'm not persuaded that the standard for these sorts of appeals should be different. there's sort of an implication
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that we have a tendency to be lenient or to somehow be partial towards the permit holder and the only -- sorry, the only times where i've seen perhaps a reduction and a penalty is when the department fails to provide sufficient evidence to support their case and i think it's incumbent on the departments in those situations to provide the evidence for the case as well, so new evidence, everybody gets a chance to see it, they have a chance to refute it if it's not considered adequate evidence, and i don't really understand why this should be apart from all others. >> i'm going the agree with that position, but what is before us, it goes to as to
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whether the recent changes structurally within the departments created the situation where their decisions are not appealable to this body. it's interesting that the arguments being made are that they spend a lot of time, there are a lot of resources utilized. i reflect on our last meeting where we dealt with a case in 7 minutes that dealt with a development of several hundred million dollars impacting quite a few people. that particular issue goes back to what the charter says, and the charter, i think our forefathers were very smart in what they did in that they specifically limited to how
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much language was put into the portion that dealt with the board of appeals and i read into that that it was intended and that this body was to act in a way that provided not only equity but a citizens' review of certain departmental decisions. to go back to what the mta wants is that by entering into this mou, we are agreeing with them that the recent structural changes in their department in essence took away the appeal rights to this particular board. i don't agree with that. i think one of the things that's been stressed to us for many different types of cases is where is it specifically
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stated? when i look at both the opinions of the city attorney and those others, departmental attorneys that dealt with the case that talked about jurisdiction for mta decisions for this body, i cannot see where it specifically took away the right of appeal that's written into the charter. >> setting aside the legal question that commissioner fung just addressed as to the jurisdiction and the appeal rights, etc., i think i find that the provisions of the mou are not satisfactory to me for
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-- principally based on the standard of review, and the up or down non-ability to modify a decision creates challenges to me and challenges that i can't overcome in the language as written, don't offer that for this board, so for those reasons, i would not be inclined to adopt the current draft. >> i don't have much more to add to that. i think i'm in agreement with what my fellow commissioners have said so far and i also have a problem with the standard of review. i don't think that it's appropriate under these circumstances and i think the value of this board is to have the ability to provide a
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citizen's review of certain determinations and fact finding, and i think any kind of inference or implication that we are biased one way or the other i think is totally inappropriate and misplaced, so i would not be in support of this mou either. >> i agree with my fellow commissioners, i think there's a reason that there is a board of appeals, in our mission statement, this is the last legal space you can go before bad things really happen, and i've had short tenure on the board and i do remember the case that she specifically spoke about, it's not -- she mentioned several times 7 minutes, 7 minutes, it's mot the 7 innuts, we get a very large stack of material that's based upon the department's homework that they've done, and yes, that the presentation time is 7 minutes but the time for
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us to go through this takes hours and hours and hours, and so i do believe as other people have mentioned earlier, that it would be taking away rights that this board is here to at least look and ensure that they have, so i'm in agreement and i would not support the mou. >> are we required to take any action? >> no, you don't have to take action. >> okay. >> okay, so shall i call the next item? >> yes. >> yes? alright. so, then we will move on then to item number 5a which is a jurisdiction request, the subject property is at 435-437 potrero avenue, the board received a alerted from mica ringel, a requestor asking that the board take jurisdiction over zoning administrator letter of legitimization issued
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on june 4, 2013. the appeal period ended on june 19, 2013 and the jurisdiction request was filed on july 25, 2013. the subject property is . if w. spencer & son inc., za order is regarding a request to legitimize the existing internet services exchange use on the sbaoert of both floors in the existing two-story building totaling approximately 10 thousand gross square feet. i want to ask people to please take a seat. if you have an empty seat next to you, could you raise your hand. lots of empty seats, so please take a seat, we cannot have people in that aisle, sir, you cannot sit there, thank you. okay, sorry for that, please go ahead. >> i'm doing this a alt the request of the zoning administrator who wrote me saying thank you for the e-mail, unfortunately, i did not receive a request from you or a copy of the letter of
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legitimization, that said, you can submit a jurisdiction request to the board of appeals, i didn't know i could do that. i never received the letter. i then replied to him with two e-mails saying request made june 3, review your case files about the legitimization, he's a very busy guy. he said he would also speak to you about it, i guess that never happened or it was not important enough, but i would have appealed this if i had -- was given the opportunity to, and instead i feel it was quietly approved without being given the opportunity, and i feel like i did my part, i went to the department, i reviewed the case files that were made available. mr. cheeg said, it will not include the letter of legitimization, the city administrator has that file,
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but a month later, he still never responded. david silver said -- the lawyer for the land -- okay -- i should have appealed the za letter on the day it was issued or during the 15 day appeal period thereafter, but i didn't know when it was approved, indeed, i requested, do you know if the draft letter of legitimization was supposed to be posted as as well, if it wasn't, mr. sanchez should know it wasn't, and i had inquired it was signed and it would like the opportunity to appeal this and i wrote to you that i would be filing appeals with the board of supervisors for the conditional use and the ceqa and that they would be filed on time and they were. so, i would -- a jurisdictional request, the board must find that the city intentionally or found that the requestor was elated, i am delayed by that,
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thank you. >> do you care to state your name for the record. >> my name is mike ka irvin ringel, thank you. >> mr. silver man? >> good evening, president hwang and commissioners, david silver man on behalf of the spencer family. we're here to sdus whether there's any reason why this party did not respect the appeal period which is 15 days for a zoning administrator letter, and i'm holding in my hand the e-mail that i attached to my letter, it's from mr. ringel to corey teeg of the planning department, it reads has the draft letter of legitimization been authorized,
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this is dated may 29 before the zoning administration letter was authorized, so when you read his claim, he says he didn't have notice, but this belies this notion because he wrote asking about it before it was ever issued. the response, one day later from mr. teeg states when these letters are issued, they are listed on our website but not failed out to neighbors. so, at that point, it begame incumbent on mr. ringel to check the planning department website which he never did. he had more than two weeks to do that. the letter was not issued until june 4, so he had five days plus another 15 for the appeal period. he had 20 days to check the planning department website and he failed to do so, so essentially he's saying to you, well, i asked a question, they
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told me to look at the website and i didn't bother, so can i please have an opportunity to ignore the appeal period. i think if we don't respect these limits on appeals, respect the period, the 15 day period, the appeal period becomes meaningless, you know, we're either going to require the appeals within that time or we're not, especially on a case like this where the speaker, mr. ringel, he did not try to present any excuse that he was out of the country, he was in the hospital, some reason why he couldn't have checked the website for the next 19 days, so i also want to state that mr. ringel has been very intimately involved in this process before may 29th, he had in fact an extensive opportunity to present all of
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his objections at the planning commission hearing which was recently held. they rejected all of his arguments by a 5-1 vote. in addition to that, he's appealed the same patter to the board of supervisors and that appeal is pending, so it's not as if he never had a chance to raise any issues, has been shut out of the process, he had every opportunity and indeed he took advantage of that opportunity with the one exception -- >> your time is up. >> by ignoring the advice to check the website. >> thank you. >> thank you very much. >> mr. sanchez? >> thank you, scott sanchez, planning department, the subject property is located at 435-437 potrero, this is an urban mixed use zoning district, which is in the neighbors planning area, i want
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you to know a little bit about this process, this might be the first letter of legitimization that's been brought before you, when the eastern neighbor's area was rezoned there was a lot of down zoning in some cases, so uses that were once permitted under the previous zoning were no longer permitted. this program allows those uses which establish prior to the effective date of the ordinance to legitimize, so these are for uses that did not obtain the proper permits at that time, so maybe an office use is one example, then 2005, it was allowed in the zoning but they didn't obtain proper permit, the zoning changed in 2008, they can consider a letter of legitimization to allow for legalization, it is not an entitlement, it just says that they can avail themselves of this procaesz and go through the proper channels for legalizing, in this case, the use was an internet services
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exchange at the subject property and under the previous zoning, it would have been allowed with the conditional use authorization, so in the letter of legitimization, we said you can seek a conditional use authorization to legitimize, so that has already been heard by the planning condition and they did approve the conditional lease authorization to legitimize the use, there's been an appeal of that conditional use authorization. currently, the dpw, the department of public works is verifying the appropriate number of sixties were taken, also an appeal was filed on the environmental review, i have not concerned confirmation of that at this point, and so what we have here is the letter of legitimization that underlings that cu, i would have to admit that maybe our process here in communicating with the jurisdiction requestor was not the clearest, i would take responsibility for that as has been noted by the jurisdiction
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requestor, he did request this file, the letter of legitimization file. i had just come back from time away from the office and i did not have that file, it was not given to me, i think staff may have given it to a support staff member, i think at this time, we probably didn't properly respond, there were also concerns raised by the jurisdiction requestor about the noticing for the conditional use authorization hearing. i was interested in this and i did go and visitor the site and confirmed the site didn't have the proper notice for the conditional use authorization, and therefore we had that item continued at the planning commission, but communications i had with staff, it was my understanding we were communicating with the jurisdiction requestor and given the information that he needed, it was not our intent to do so, that's what i wanted to provide to the board and i'm available if you have any questions. >> i have a question, if the
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appellant was requesting the file regarding the let of legitimization, wouldn't one have been issued? >> with this process, we send a draft notice out or draft letter of legitimization and that goes to all the owners within 300 feet of the property and i think one of the issues here, the building in which the jurisdiction requestor resides in or part owner in is tic, it doesn't have separate parcels so we don't send it to multiple owners or multiple lots, it goes to what's on record with the assessor's office and that goes to the person that's listed on the title of the property that went to the subject property but it sounds like there was no communication between the co-owners of the building and he was not made aware of that. when i received this e-mail which came late or maybe 3:00 or so on monday the 3rd, at
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that point, i already signed the letter of legitimization, it's dated the 4th but we have to have staff has to process the letter, and so i had signed it earlier that day, i spoke with the staff and said that i did not see that this was justification for delaying issuance of the letter and we issued it and it was done properly and i apologize if that wasn't communicated effectively to the jurisdiction requestor, but i did not see in there a specific request to have a copy of that mailed to them and if he did request to see the files, unfortunately the file is not available for him to review at the time he came in, then i apologize for that. >> but my point more is that there was awareness of the file which would suggest the ability perhaps then to file a timely appeal? >> yes. >> that's what i'm trying to get at. thank you. >> yes, i think it was understood that there was a letter of legitimization that
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was pending issuance. >> i just have a quick question, sorry, is that okay? okay. if we grant the request for the letter of legitimization since this is a new type of process document, then the conditional use authorization that's being currently -- it's pending, right? so, that was a matter that was continued? >> it was continued -- >> it hasn't been granted yet or has it been granted and that's now on appeal, so would this sort of stap all those processes because you can't get -- without this letter, you can't sort of build on it, correct? >> you're correct. >> okay. >> so, i don't know how the timing would work and how the board would want to or need to
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hear the appeals, but you know, it's a bit of a catch 22 here, so i think ultimately if this board does grant jurisdiction, here's the appeal and grants the appeal and denies the letter of legitimization, that would invalidate any cu which has already been issued for the property. >> okay. >> mr. sanchez, in the eyes of the planning code and the planning department, tic's are considered owners, are they not? >> it's one parcel and we send it to the -- >> i understand who you send it to, but as a definition, if you have multiple owners holding a tic interest, they are all considered owners, are they not? >> it's one owner. we would see that entity as one ownership entity.
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because we have no -- we don't get into the ownership structure of units, so if someone is a 50/50 ownership, maybe it's not a tic, maybe it's some other ownership, we send it to what's on record with the assessor's office. >> and who establishes what's on the record? >> i believe it would be the property owner working with the assessor's office to determine the appropriate mailing address for other things like tax bills, etc.. >> so, in other words, you don't send -- there's five owners, you don't send five tax bills, you send one tax bill and they're responsible for figuring out who's going to pay? >> yes, that's my understanding. >> this doesn't quite work, does it, for notice? for planning issues, you know, because your notification process are the most extensive in the city, not only in some instances, they don't just go
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to the owners, they also go to tenants, you go to every tenant, it's not just one tenant. >> we rely on the property owner chooses who gets mailed notices from the assessor's office, so we rely upon that, we don't know if someone is 50% owner, we don't get the owner structure. >> okay. >> okay, is there any public comment on this item? please step forward. >> just regarding the last comment through -- my name is elesia thomas, i practice in tax, the name that shows up on the assessor's record is often random. individuals and the tax records, if you actually go farther down in, the evils and the owners are listed there,
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however, when it comes to reporting, just the first name shows up. i've dealt with this in a number of instances in my own practice and it's just an addressing issue, so i don't know how to resolve the issue for planning's purposes, but it's a frustration for people in tax, i can say that. >> any other public comment? okay. seeing none, then commissioners, the matter is yours. >> may i respond to that issue? >> unlikely, but we'll see what the president says, it's her call. >> i'm sorry, hold on one second.
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>> may i quickly respond to this issue? >> what issue, the tax? >> about the tic? >> no, no. >> can i respond to -- >> is it your turn? >> there's no rebuttal. >> you're out of order. >> okay, if any of the other commissioners would like to hear -- any comments?
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>> well, commissioners, you know, on the one hand, it appears that the jurisdiction requestor knew about it, i'm not sure that he got all the information he needed to get and he could have availed himself, but i guess what bothers me is that if tic's are a legal structure for ownership, to me, the definition of owner as required in the planning code and other departments, in our own notice processes, it goes to owners, and you know, i'm not trying to tell the assessor what to do with their own processes, they probably wouldn't listen to me anyway, but you know, i think there is some basis for people to get notice if they are
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so-called owners. >> i think -- i mean, i understand where you're coming from, commissioner fung, but at the same time, thinking about property and ownership, i think it is difficult to determine from -- to determine based on, you know, a da who in fact has an ownership interest has private equity, you could have a share, a piece of some property and a tiny portion of it, we're talking about human beings and real people here, not corporations and investors off-site, so there's like a big sort of span of who could have an ownership interest that might need notice, so that to me, i think we have to rely in this case on what the code requires and i think here, the code just -- i think what the department did in terms of notice was sufficient and
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appropriate based on the assessor's records and what they had before it, otherwise, it would be next to impossible to see everybody's ownership in every property that's my personal view, but i understand here we're talking about real people, not off-site investors. and i think that the -- i mean, this is a different type of a process here that we're dealing with and the fact that it has already gone down to the cu and that is on appeal, it gives me some assurance that further process will be had on this, so i'm somewhat disinclined to grant jurisdiction here, but i haven't yet fully decided. >> for me, again, it appears that the requestor had an opportunity to find out what was going on in a timely fashion and for whatever reason did not avail himself of it, so i'm less concerned about the notice part than the fact that
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he seemed to know and made inquiry and then didn't take next steps, so i would be inclined to not support it. >> i too after looking and reading the briefs, i believe mr. ringel was aware that this process was going on and the fact that he's using -- bh the zoning administrator was out too far for us to rehear this, that would open up pandora's box for many rehearings, i think he was aware that this process was done and again as our president has said, the cu has already gone through the planning at this point, so i see no reason to break that up. >> we have a motion. >> move