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tv   [untitled]    December 10, 2010 2:30am-3:00am PST

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permit came up with before the second hearing or before my rebuttal. commissioner garcia: i will ask one more time, and you have to get out a brief answer because of not really addressed the question. the question is, what is the harm to the neighborhood or anyone if we allow them to present us with evidence or information that might make our findings more correct? what is the harm? >> and would give you the opportunity to change your vote? commissioner garcia: no, it may only allow us to change our findings. it has nothing to do with the vote. but that is that correct? president peterson: the board's decision is final until new evidence is entered. soak the findings could change. >> maybe that is the answer to the question. i am not represented by an attorney and likely will not be
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because i cannot afford it. president peterson: i guess what you were alluding to, could a commissioner asked for a rehearing on orre-vote? commissioner garcia: okay, forgive me for not knowing that. that has not happened since i have been on the board, about five years. >> from the little i have been able to gather since this came up, this is out there in the quicksand. i have not been able to get clear information on what the possibilities are, so frankly, i am not sure how to respond, and that is the truth. but i would not want to weaken our position, obviously. commissioner garcia: okay, thank you. >> any comments from building ordbi. is there any public comment?
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seeing none, commissioners, the matter is before you. commissioner fung: commissioners, if the permit holder and council feel -- and counsel feel it would require further information with respect to the disagreement over the findings, i see nothing that would prohibit us from looking at that information as we try to resolve the final language of the finding. commissioner garcia: i would agree, but i guess the practice of the board -- and maybe we have done things that are not accurate in the past -- to the
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findings accurately reflect a tone of what went on at that particular hearing? and i guess there have been times -- and i think we have rehearings tonight were some of the same things are suggest it -- where whatever we relied upon to reached the decision we reached might be called into question. i guess that is basically what is happening. i will agree with commissioner fung, even though i voted against this in the first place. i voted in favor of the permit holder. what i would not want, it seems as though when we go to look at the findings, we're gong to consider the issue of whether or not work was started prior to granting of the permit, and assuming this vote were to pass, assuming we would allow
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more information, i would ask dbi go through their records and let us know what ever they may have that would shed light on whether any work had begun prior to the issuance of. rigid prior to issuance of the permit. commissioner hwang: i am inclined to allow out for the briefing, notwithstanding the fact there was time. i don't think hearing additional information, reading additional information is going to present any issues for us. commissioner fung: commissioners, i move that would continue this case for a period of one week, i guess. >> you would have to consider whether you want to give the
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appellant time to submit something as well. if the permit holder has already prepared something, you can either give them time to re- prepare new material or except what they have already prepared. but i think in any event, you should give the appellate some time to respond. commissioner garcia: would it be reasonable if the original permit holder were tonight to give the materials they intend to submit to the appellate? >> she has it already. >> it was submitted by e-mail, and i believe you were copied on the at,no? -- and i believe you were copied on that, no? commissioner fung: excuse me, if you're going to speak, you need to be recognized and come forward. madam director, one week is not enough time. >> i think it is a question of
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how much time we want to give the appellate time to respond. commissioner fung: the next full board is january 19. and i think if we're going to look at this information, we should have a full board. >> is your motion to move it to the 19th? commissioner fung: move to continue this to january 19, and the information can be provided on the normal time basis. >> ok, so the permit holder's sub mittal should be provided two weeks prior and the appellate one week prior? and the department of building inspection also one week prior. vice president goh: and the submittals are to be narrowly
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addressing only this one issue of whether or not work was done before the granting of the permit? commissioner fung: no, i think the issue is if they have a difference of the findings, they can't present their differences with the findings. rich can today present their differences with the findings. president peterson: i think if it is new evidence, i don't know how there will not be a new hearing. >> i think the idea is the information that was requested to be submitted this it -- is specific to the draft finding. we already have it in hand at the board, very specific to concerns about additional evidence related to the draft findings. vice president goh: i will probably vote in favor of the continuance, but i have a concern if every time we consider findings were the
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parties disagree, which will probably happen quite often, if we will then continue them in order to get basically additional briefing. i am concerned we are on a slippery slope here. commissioner fung: i think it is slightly difference. we have had cases where there has been difference of opinion on the findings. usually those differences are communicated to us. in this instance, we had no communication with the differences were, therefore i am prepared to accept it. commissioner garcia: i guess i have a bigger problem we are going all the way out to the 19th of january. it seems prejudicial to the original permit holder, and i would hate to be the one making this argument cents i originally voted to uphold, but i don't know if they would ever be required when findings come up, would they come to have that
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in the hands of the appellant? is that something that is always required? president peterson: that they provide their objection to the appellate court commissioner garcia: yes. >> anything that would get distributed to the board members would have to be distributed to all parties. commissioner garcia: i am also confused by the fact, we were going to have the hearing heard next meeting. correct? >> on the finding. icommissioner garcia: why would they need our permission to submit some argument as to why they disagree? and then we should consider that in either change that part of the finding or not. >> it is a good question, commissioner, and the rules are silent about s additionalubmittals.
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they say any additional material may only be submitted with permission of the board. it was under that guideline that i brought this issue to you. but it could be a board ruled that parties can submit additional restatements and association with the findings. commissioner garcia: ordinarily they would have to make oral arguments? >> ordinarily, they would submit comments to the deputy city attorney and myself, and to the extent we can make changes and corrections to the findings, we can do that easily before they even get to you. in this case, the material was more substantive and we felt it was an issue for you to consider. commissioner garcia: i guess there is no reconsideration of this board about house should we do this? ms. sam got up to address the
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board, and i am troubled by the fact we're going out so far. >> there is a hearing scheduled for december 14 on this matter. it on that hearing date, i would be willing to say whatever we had already submitted about a week ago, we would go on that. that would be all of our evidence on the findings, and give the appellant time to respond to that prior to the december 15 hearing, maybe a day or two before the hearing. because you are right, the permit holder is paying rent and expenses every month that this is unresolved. so, yeah, january 19 is far out. icommissioner garcia: thank you, and the appellant is raising her hand. president peterson: out of fruit fairness, she needs to come up.
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-- out of fairness, she needs to come out. >> it seems to me at the end of the hearing, there was a lot of comment about the fact no more information. no more written information could be submitted, and that was my understanding. it was news to me after the findings were out that it could be addressed in a written manner. this all caught me off-guard. i have not read it. if they have submitted things, it seems only fair we have an opportunity to address what they submitted. doesn't it? commissioner garcia: they could have raised in an oral argument next week and it might have done away totally with what we're doing right now, and they could have shown up next week and made some oral argument about what ever is contained in this brief and we would have considered that before adopting findings anyway. it is just the recall is that
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makes it somewhat easier for people to follow the fact it is in written form and it is not much deviation from anything we ordinarily do. >> perhaps i misunderstood in the beginning the opportunity -- what the opportunity was to respond to the fighting. -- to the finding. i was not aware i could even comment during the hearing next week. and it seems like such a shortperiod of time. commissioner garcia: you would have had the opportunity, and you will still have the opportunity. >> i was just not aware. they are now represented by legal counsel, which puts us at a disadvantage at this point. commissioner garcia: some lawyers may argue with that. commissioner fung: madam, you
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would have an opportunity to revisit -- to review their submission by next friday? >> how would hope to have a minimum of two weeks. it is the holiday season. there is so much going on. trying to make a response to this in a week's time and try to find the time to do that in an adequate manner will be a real stretch. president peterson: i guess the thing is this is sort of converting into a rehearing request. what if we were to ask for a rehearing instead? i say that only because the findings would have to reflect that after the fact we received additional evidence to be considered. >> until you adopt your findings, your decision is not final before you have adopted
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your findings. you can continue to accept evidence until you adopt your findings. >> did i misunderstand after the last two hearings when they said we could not submit anything else further? >> that is why we are here today, because it takes board approval to accept additional submissions. >> you are talking about the time when there were not enough votes. that is when we said no more evidence. >> but mr. kaplan was also told that he could not resubmit anything. >> between that time when we were waiting for the last commission -- >> at both hearings, there was that admonition. commissioner garcia: i think we're clear how you feel and how the other side feels and it is time for the board to make a decision. vice president goh: i have a question put it -- i have a
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question. the finding is there is credible evidence and the record. work began prior to issuance of a permit. we just heard from counsel that the allegation that the work was done after the issuance of the permit was made at the last hearing -- she just said that, i wrote it down. so, it really sounds to me like we're talking about a request for a rehearing. why would we not just vote on these findings, adopt these findings, allow them to request a rehearing based on what they're calling new evidence, declarations, or what not, that we have not seen? i am trying to ask our counsel question. >> it is within the board's discretion.
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we have received these written submissions about the draft findings. under the board's rules, we cannot accept them without the board voting to accept them. given the circumstances, the president has decided to give them the courtesy of being able to argue to you why you should exit them at this juncture and not later at a rehearing request -- why you should accept them at this juncture in that letter at a rehearing request. >> this is not the adoption of findings. this is calendars as a special item for turning in evidence. vice president goh: next week is the adoption of findings. commissioner fung: i will amend my motion. my motion will be to continue to accept the documents and maintained a hearing until next week. vice president goh: commissioner fung, i guess i was inclined to
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allow out to the continuance until january and allow them time to respond for fairness reasons. i think it is unfair to allow her to respond in writing. i am inclined to support a continuance under these terms. >> commissioners, shall we call the motion? president peterson: call the vote. >> commissioner fung, the motion is to continue this matter until next week to allow the distribution of permit holdersubmittals to the board with note submission by the appellate? commissioner fung: i believe my motion was to accept additional
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information provided by the permit holder, and we will accept any response to that information by the appellant and to maintain the schedule the hearing on adoption of findings for december 15. commissioner hwang: a question, when was the e-mail that you referenced earlier sent to the appellate, copied to the appellant? >> it would have been i believe on december 1 or november 30, thank you. >> commissioner fung, would you
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be allowing ms. morgan up until tuesday to submit? commissioner fung: that is correct, or orally at the next meeting. >> the motion is to accept the supplemental information which we are to have at the office and to allow the appellant to rebut by next tuesday in writing if she would, and the adoption of findings which is already scheduled for december 15 remains on december 15. commissioner fung: correct. commissioner garcia: i feel compelled to make a comment. it to explain my vote to commissioner fung. commissionergoh made a cogent argument, in my opinion, we're opening ourselves up for a whole new direction when we consider findings. and i think that we should -- i will vote against the motion,
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because of the comments by vice president goh, and my reasoning is going to be i think they should be made to go through the normal process. bacon come up here andand we mao do that. and if they have some new evidence or something that would rise to the level of requesting a rehearing, or if we ourselves would want a rehearing, i might vote for that. but i intend to vote against this motion and wanted to explain my point. >> may i be heard on that comment, commissioner? commissioner garcia: i do not think so. commissioner fung: i do not think so. >> considering that, adoption of findings to remain on next week's calendar. vice president goh: no. commissioner garcia: no. president peterson: aye.
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commissioner hwang: aye. >> 3-2, that remains on next week's calendar. president peterson: if you could give multiple copies to our board office? thank you. commissioner garcia: i worry about the future. president peterson: we are ready to move on. please call item 5a. >> calling item 5a, multiple jurisdiction requests. the subject property at 171 lee avenue. we have an attorney letter asking that the board to jurisdiction over 2 you will permit applications which were
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issued on november 16, 2009, and december 30, 2009. the appeal period ended, and the permit holder is chio leng cheong. >> lawrence cornfield, department of building inspection. -- kornfield. i had the chance to speak with the building older and appellate about this complex problem. there is a problem because the plants showed that the windows being proposed are 3 feet from the property line, which is ok. but there was a service provided in the appellant's documents that shows it is part of the building that is closer than 3 feet from the property line. it is 2 feet. because of that, they are both agreeable to a continuance where i can go back and reconsider
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what this project should actually include that would be compliant with the building code and a satisfactory to the neighbor. they are both here and i think that are both willing to continue this while i sort it out. with your approval, you can hear from them. commissioner fung: that is fine, mr. kornfield. however, part of the question relates to the validity of the permit. if they are intending to ask for a position from this board on the validity of work and the scope of work, then we need to see the documents. the permits. >> would you need to see that in order to have a continuance? commissioner fung: no. i am saying if there is no resolution prior to this case, before that next during we would need to see the permits. >> of course. would you like to hear from the
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parties? president peterson: how long on the continuance? >> i would have to ask them. president peterson: ok. >> good evening, commissioners. jeffrey chen for the permit holder. good evening, commissioners. >> john chiao for the repellents. we do request a continuance. my client's architect will be dropped plans to see if we can have some kind of drawing complies with building goals. the idea would be to submit to the city and the neighbors for their approval and then resubmit to the board for determination. there could be revised permit
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issued. commissioner fung: how long of a continuance? >> 60 days? commissioner fung: is that agreeable? >> how about 90 days? commissioner garcia: who is representing the project sponsor? >> i am, your honor. commissioner garcia: thanks for calling me your honor, but i am a plain old commissioner. if you are satisfied with 90 days, we will give you that, if that does not harm your client. >> i think if there are some problems withdrawing these plans, we need some time to come up with an idea. >> i think providing more time will serve everyone's interest. i also want to make a note before the board that the
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external envelope has been compromised. as you can see, the wall has been opened here. the exterior. here is an image of the wall. commissioner fung: are we talking about continuance, or do you want to argue the case? >> i just want to make sure that with possible continuance that the wall is patched up. commissioner garcia: i do not think we can do that until we hear the case. >> i am sure my client wants to patch it up for the protection of their property. president peterson: you are the jurisdiction requestor, right? and you are concerned about the property owners building? >> it is directly facing my client's property. it is esthetically and pleasing
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-- unpleasing. and there are concerns when they go in and out from that. president peterson: it sounds like 90 days. commissioner garcia: so moved. commissioner hwang: i would ask that both of you work together to submit a rescheduling request for the other people attending as well. >> i would also like to remind the board that there is on calendar on january 12 of next year two permits that are being appealed on the calendar. to make sure that all for permits are being written -- all of your permits are being addressed -- president peterson: those are not on the board calendar right now, but you can usually request a rescheduling. are you familiar with that form? you can work together to submit
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a form to reschedule those matters as well. that would be appreciated. i would be happy to speak to you about it if you like after the meeting tomorrow. >> this confirms that no further work is to be performed or extended until -- >> if those permits are on appeal or suspended, the jurisdiction does not suspend -- those are not suspended. continuance does not suspend an item. if you have an agreement, that is a separate matter. but continuance does not suspend the permits that are the subject of the jurisdiction request. >> well, we -- my clients to agree the will not continue work during this period.


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