tv [untitled] October 15, 2010 4:30pm-5:00pm PST
fairness and due process. my client was not represented by counsel prior to this time, even though as a man here today was referred to as counsel. he was never an attorney. we believe there are unique issues to be presented, some of which were raised by members of the board itself. i have outlined those issues in that 2.5 page letter. i think it is fundamentally important that this be a matter of legal significance to the board, that the legal issues raised by the commissioners be addressed with the additional briefing that i am requesting any additional evidence that might be presented. i am more interested in the briefing than the evidence. i spent three days reviewing the video tapes of this matter. i am familiar with the facts and circumstances of this case. there is an agreement with the appellate to consider -- to
continue this matter to december 8. both the appellant and the permit holder have agreed. i see no legitimate matter for not continuing this matter for further briefing or further evidence as necessary. let us have all the issues on the table and get all the issues of legal significance addressed. then the board should be able to take its vote. i would like to call the attention that the permit holder's rep is also present. president peterson: i want you to understand that when mr. horse field drop off your letters earlier today i explained to him that they would not be distributed to the board, that the board did not agree to any additional briefing, and that you would have the opportunity to speak to the board on this matter. they do not have your letter. >> i appreciate that. i think we are going to have a break. perhaps the board might consider reading that letter over the break.
i think it will take something like two minutes to read the letter. thank you. >> thank you. ms. morgan? >> thank you for being here and hearing this yet again. when i received this fax this morning, it brought up a lot of concern that we had not answered all of your questions that were raised last time, and made me think that perhaps it would be better to postpone it. frankly, i would rather have the vote tonight, but only if there is a guarantee of a vote in our favor. [laughter] i think that what i will do is
withdraw my compliance with the continuance and leave it in the board's hands, because i feel like you are very thoughtful and have taken a lot of things into consideration. i really appreciate it. >> thank you. is there any public comment on the question of the continuance? seeing none, commissioners? commissioner garcia: do we need a motion on the continuance issue, or in the absence of emotion there would be no continuance? does anyone want a motion or do we just want to decide we are not going to continue? vice president goh: i will just renew my motion. commissioner fung: may i make a short statement? i struggled with this case, and therefore i think a continuance is in order.
i am prepared to vote tonight, but you should be aware that i have been struggling with the legal issues involved in this particular case. vice president goh: would you like to make a motion for a continuance? vice president goh: i am willing to -- commissioner fung: i am willing to move that it be continued to december 8. commissioner garcia: i understand that you might want to change your vote or might feel more strongly about it or say other things to amplify earlier comments you might have made, but it would seem to me that it would be reasonable that we allow commissioner hwang, who has watched this, to make her vote. it may moot the issue of the continuance. i think that if her vote is to uphold, in which case there would not be the votes for
overturning, then it has been muted and we would decide the issue was put to bed. to have a further hearing on this, i think most of the facts have been brought forth. i think the new legal issues would have to do with the fact that a cfc has been granted. we talked about the implications of what that does to the board in terms of the standards it has to overturn a permit. i do not know if you accept my plea, but what i am asking is that we have the boat and then if it becomes necessary to consider the issue of continuing we can introduce it. commissioner fung: i do not have a problem with it if it reduces the amount of process. vice president goh: i was thinking i would support a continuance because you expressed a desire, but even if we did continue we would have to vote to reopen the hearing in order to accept materials from the parties. commissioner garcia: why is that
a problem? vice president goh: i am just alerting us to that. if you feel that a brief from the permit holder's council would help your understanding of the legal issue, the other issue is there will not be a lawyer on the other side. commissioner fung: i think that is not the point. it does imply -- a think that is a good point. it does imply some type of the process which may not occur. i am not intending to stretch out the amount of process that is required to come to a conclusion on this particular case. if the other commissioners are prepared to vote, i am prepared to vote.
>> how much time did she have left? >> when someone leaves the lectern, they give back to the chair. president peterson: are you proposing a new motion? commissioner garcia: he is willing to consider the motion at the last meeting by commissioner goh which we continued to give commissioner hwang an opportunity. vice president goh: i can remake my motion, but maybe we should have a conversation about some of the legal issues. we are in deliberations, right? if your concerns are those, we can talk about those. perhaps we should do so after we hear commissioner hwang's
leanings. commissioner hwang: of course i am prepared. commissioner garcia: do you want to restate your motion? but do not think we have the motion before us. go ahead. president peterson: we can deliberate. commissioner hwang: we do not have a motion yet but i can state that i did review the hearing in its entirety. what it left me with was a conclusion that the permit itself was invalid for reasons that i believe -- there were credibility issues, misrepresentation with respect to the work done without a permit. an nov should have been issued instead of a permit over-the- counter. had one been done properly, it would have been flagged to the
planning department before issuing the permit. that is based on the testimony and evidence submitted at the hearings and before in documents. what we also saw was the overwhelming evidence that this permit is flawed and that it failed to take into account the community concerns. it was powerful to hear all the people come up and stay there serious and felt concerns about having another pharmacy on this block, where it was overly populated with drug use and abuse. that is where my thinking is with respect to the legal concerns. i also understand that in terms of the process in this case, as with the last case, the appeal was filed here in the time. prior to the issuance of the -- in the timeperiod prior to the
issuance of the commissioner fung:. -- of the cfc. within a matter of a month, apparently all the work was done and a cfc was filed, and then our hearing was held a week later. everything was extremely compressed for such a fairly significant job, given the pictures i saw in the packet. for those reasons, i had serious concerns. i believe i know where i am going to vote. vice president goh: i am going to pipe up unless you have some comment. commissioner fung: i think it is only fair that a comment where my discomfort developed. there was no doubt in my mind that the issues that were
brought forth resonated very heavily with me in terms of what are appropriate uses. that was not the question in its entirety before us during the hearing. as i reviewed the entire packet again in preparation for this meeting, i came to a little bit of a quandary in trying to ascertain the level of either error or not due process that was provided in the issuance of this permits. what i indicated as one of the reasons why i was prepared to move forward against the permit last time was i felt that the
planning department should have, as part of their broad responsibility in addressing planning issues for the city and county of san francisco, have dealt with specific overlays that apply to a particular district, a particular neighborhood where there are certain needs and responses that are required. the question in my mind was whether that rose to the level of error, or whether it rose to something that i would have preferred to see. therefore, i was struggling with this particular case subsequent to our last hearing. commissioner garcia: make your motion and we will see where it lands. >> commissioner fung's motion to continue is still on the floor. commissioner fung: i will withdraw that until we finish
our discussion. vice president goh: i had some thoughts on the cfc issue. the questions that commissioner hwang mentioned are right. if we vote and create a precedent that when a cfc issues, we are hands off, we are going to create a rush to get a cfc, which is what we have seen in these cases even without making that ruling. we see the timing in this case in particular, with this very tight timeline between when they got their permit and were legitimately doing work to when they got their cfc issued. i think that is a big problem for us and would create the situation where we would not have jurisdiction over a case where a cfc had been issued even
if it was issued after the appeal was filed, and we would have to be hands off like a ceqa case. i do not think that is the meaning or intent of section 26, which gives us broad discretion. i think that would be wrong. we also have a precedent for taking cases where the permit holder has relied on the issuance of the permit and expended a lot of money. union bank spent a huge amount of money. the case that we were considering was the congregation were the city could not revoked a permit because the permit holder had relied on the permit application process and had done the work. it was a $36,000 expenditure. in the union bank case, it was
200,000. it was a huge amount. we took a look at that case and that permit. i think to comply with our charge, section 26, considering the best interest of the community, we have to not strictly appliy this -- i cannot find the case law now. the idea that we would have to be hands off in this situation. >> i want to clarify that a cfc is not issued when a permit is filed -- when an appeal is filed because the permit has been suspended. it would only be in a situation where a jurisdiction request has been made. vice president goh: in this situation, it was a tight timeline. commissioner garcia: let me talk
about the detrimental reliance issue you raised. if you remember, union bank -- the difference is the fact that with union bank it was an interpol code -- and interpretable code by the planning commission. it was ruled that the project's sponsor has exceeded what was allowed by that permit. that was very different than this. no one has raised the issue about whether or not, at least as far as i know, this gentleman or this particular project sponsor went ahead and did a project thinking he had a valid permit. i understand the commissioner raised the issue that it might not be a valid permit. one of the reasons i want to speak is because what i felt very strongly about has nothing to do with the cfc issues or
whether this was issued in error. it has to do with the fact that the main issues raised by this neighborhood growth -- neighborhood group having to do with this operation were issues that should be dealt with by three different bodies. one body would be the planning commission, whether or not they should see what the situation is for this particular neighborhood and place some limitations on the number of operations that mimic this operation, dispensing pills. the other body that would be does -- that would be concerned would be either planning or the board of supervisors -- a nuisance issue. if this operation is a nuisance, there are ways to deal with this book before the fact and after the fact. lastly, it is the police issue. most of the reason this neighborhood seems to be against this is because they feel, properly or improperly, that
this operation will be in texas for crime. i do not know that we should deal with that and decide anecdotally that the neighbors are correct, it will bring more crime into the area, and therefore we should say this permit should be overturned. go before the police commission every time they meet and say, "we have a serious problem in our neighborhood. we are known as pill hill. there are people overtly doing drugs on the street." it shocked the police officer and he talked about it. that is where it should be dealt with. i intend to vote to not overturn this. i may be the only one, in which case we will talk about whether a continuance is appropriate. vice president goh: i think that we are charged with considering
what is in the best interest of the community. it is in code 26 that i read last time. that is the point. planning and building do not consider those things, or cannot consider those things when they look at whether it is a code compliant project. we are charged with listening to the community, and we do listen to the community. president peterson: -- >> i want to add that there is a difference in the timing on the cases. the prior case, the permit was issued in november 2009 and it was almost a year later before the jurisdiction request was filed. there is a sense of the other permit holder at some point being able to rely on the project. we were looking at a technical legal issue. conversely, i think here, as others have said, this was a
very condensed time schedule, a permit issued on may 24, 2010. it was almost miraculously built within a month's time and a cfc issued. i think here the vested rights argument is less compelling. here, as we balance, we are a quasi-political as well as quasi-legal body. -- president peterson: >> commissioner percy yet talked about taking a vote and then taking a continuance motion. commissioner garcia: we can make a motion to rescind. vice president goh: i am going to go ahead and make a motion. what was my motion last time?
>> it would have been to revoke the permit with findings at a later date. commissioner garcia: before we do this, not to complicate it any further, there is always the possibility of requesting a rehearing based on some of the issues that may have been raised that did not get addressed. if you were to lose, you might prevail where you to apply for a rehearing. vice president goh: i think it is not in the minutes, but i would grant the appeal to revoke the permit. >> do you want to stick your findings or do you want findings at a later date? commissioner fung: later date. >> the motion is from the vice- president to overturn or revoke this permit with findings at a later time. on that motion -- commissioner fung: aye.
>> aye. >> we begin with the appellant. >> a plane need to make a disclosure. -- i need to make a disclosure. i have utilized the services mentioned in a professional basis which will in no way affect my ability to make a decision. >> i am a member of the state bar of california but that will not affect my abilities to be objective. >> the same goes for me. >> and for me. >> can i have time to think of a disclosure? >> good evening, i represent the
state far of california. this is the owner of a building on howard street. and you are looking here at the project. to the left, you will see the state bar building. when we bought the building, it was retrofitted to extend. when we come to 120 howard, the project that we have appealed and there has been a lot written about this. this really defies common sense to think that you can add four stories to it top of the
building without needing substantial retrofitted. reinforced concrete is one of the more concerning forms of construction that we have. the state bar's interest in this is only for the people of san francisco. the only wanted this to be built right. what we did when i got involved in this project is that we went out to find an engineer who had not been previously associated with the project.
whether there was legitimate engineering concerns. there was, frankly, because we were prepared to let this go forward. we hired a professor at the university of california in berkeley. he is probably the one person who decreed said -- who would agree that this needs to be looked at. around the time we got to -- we have been given access to the complicated computer data which is being used to justify the performance of this building as designed. i don't pretend to be an engineer. there are a couple of slides in
the package. i will make a couple of proposals to you. the next slide shows what a building will look like as proposed. those are the four stories. then, and jack is to look at the data and finally meets with the project engineer. in that first day, the professor identifies three critical faults in the analysis. one of them is portrayed here which shows and that they have miscalculated the required dampening and the performance. there is another slide here which shows to the standard that is being used here which is the most permissive standard that actually a performance which should look on the one on the
left actually looks like the one on the right. they say, we will be to the data. we have learned that they have redone the data. they have not shared this with us but apparently this is still okay. that is the kind of approach which i don't think that the public should put up with. the other critical piece they came out of our discussions with the applicant was that there is a problem with this structure. there are still attachments running between the vertical which reduces the length of the project. the project engineer has been acknowledged that they have looked at what they have co