>> we are only expecting comments on the motion, nothing having to do with the merits of this case any longer. thank you. >> the motion is for granting the appeal and the permit is being upheld with a new when dell assembly and with fire- rated class the cannot see through. on the motion -- the >> to clarify, granting the of feel modifying and this requires four votes. >> correct. >> on that motion -- >> aye. >> aye.

>> no. sfgov.org aye. >> aye. >> i am unhappy with the issue. given that things have to be worked with, this is something that i would support but nonetheless, i think that the complaint and the source of liro -- why we are talking about this, this is what it appears to

be. that is san francisco. >> if we did not have to do something about the window, i would agree with this. >> aye. >> the permit is upheld with the modified scope. >> shall we take a short break?

>> we will take our last item, item number 11. >> calling on a love and -- calling item number 11, jasonb ley verses the zoning and administrator. this is processing a request of release of suspension addressed to the department of building inspection director which requests that suspension be released because of the property is now compliance and analysis

special restrictions. >> i have a suspicion that we might end up hearing a lot of issues and they want to stay focused on the fact that the question is whether or not this is a good project. whether this is a good or bad project, it can be determined if and when the developer or property owner decides to apply for a new conditional use program.

>> i agree with the appellant, this is about the merits -- not about the merits. the appellant has talking -- is talking about a conditional use. this is the release of a suspension request. the original letter was issued in december of 2009. we have worked with the sponsor to address all of the issues.

they have demonstrated that they have deep preservation. they have that architect from board. they have dealt with these issues that they have identified. we need to talk at the project history and we will develop on this further and provide more details.

the letter was not issued until february 12th of 2007. the planning department of prove to the building permit application and the building permits issued to the project engine. throughout this process, there were never any appeals filed by this project. this is not really about the merits of but project.

we have three years to to contain the use, this is the sony in the traders to apply reasonable standards. the conditions of approval or three years. there were several delays and they were reasonable. the various decision letters have a three-year window. the ballot was on the letter. this was recorded in a reasonable fashion.

the other issues that delayed the project only delay it for the benefit of the project. there will be building code changes that went into effect. there are questions about how they can preserve the brick and work those issues out. also the wood floors and keeping those. the project was delayed, this was for the good of the project. it is reasonable to say that this is valid. this was never revoked. the zoning has not changed. this project can still be approved. if a conditional use forward to have expired, they would have to simply go by to the planning

commission and have another hearing and to modify the previous condition of approval. there is an expensive process. that would take some time. there is a reasonable argument that a still timely. the suspension request was issued and they addressed the concerns. we have seen the suspension, that is what this is about. the concerns that were raised have been addressed. i am available for any questions. >> under normal circumstances, would there be some formal extension to of course if ãsome project sponsors

will request a letter of determination which would be the formal extension. not all may request that. while we were reviewing this, in 2008, when we had approved this and when we issue to the suspension request, we felt that this had complied with the conditions of approval in terms of the expiration. >> the thing that confused me the most had to do with the fact that the motion, it seems strange that it would have been issued beyond the date that it would have expired. >> there was not an issue in

some until 2007. there was a reasonable argument about the various decisions letter. this is clearly within the three years. in general, the only with this can be extended is through a formal request to the zoning administrator. the staff and the summit is administrator never viewed the applications. in this case, this took place in the form of an internal review.

>> often people will request a letter to certify that they have the ability to extend it and there's the ability to refresh the cu. >> what about the suspension? >> this was in december 31st, 2009. during that time, they testified to the committee to liaison which worked with the department on other issues and even revised plans engine. >> is this safe to say giving your position today that had a request been expressly requested, and you would as the

zoning administrator would of had the discretion to determine whether or not such a discretion would be considered reasonable. that would of been your determination. implicitly to your positions today, that is what you would have done? >> that would have been supportable considering that the issue was not until early 2007. >> the project is not fully entitled until all of the relevant parts have been obtained.

the in garments the review is granted in 2004. the shadows study is required for buildings over 40 feet in height. >> what year was that? >> this was earlier on when the application came in. if we find there is no impact, it does not really progressed beyond that stage. then the conditional use was approved in 2005. >> why doesn't the o'clock start as of the approval? >> we are making a reasonable interpretation that this is still valid because the letter was issued to about two years after the original

authorization. there is discretion in interpreting conditions of approval. based on the history of the project, based on the delays that have occurred through a change in the building code, working with the design on the department. this resulted in delays. the various was not issued until 2007. they could not have gotten it issued in 2006. the decision letter was not issued. the earliest that it could have conceivably, in their building permit approve would have been early 2007. >> do they have the building permit approved now? >> yes. >> this was issued more than a

year ago. had it been appealed, it would not have been able to come to the sport because of the underlying conditional use. >> where is it written that this sounded minister can extend the time? >> this is in the journal of duties and responsibilities that allows is on him a traitor to interpret the planning. then the conditions of approval dollars damage. this would also have the three- year exploration but also a second paragraph after it that would explicitly give approval.

there is an argument whether this is valid when this is not been revoked. this is not been taken away from the private sponsor, this is a factor the condition of approval. we have generally been instructed that this would need to go through a planning commission hearing. >> why would you need to revoke this is it as a clear expiration date? >> this has been the advice from our city attorney's office that that language is there and we can try our best to reinforce that but there is a reasonable argument that you have to go back to the planning commission. this is based on past his vice

that we have from the city attorney's office. we would not say that this is completely expired and we need to start from all over but we would probably say that you need to go back and amend that one condition. >> why wouldn't you require that? >> because we believe that this means the intent of the condition of approval and this is within a timely fashion. >> it was the planning commission and the notice of the special restriction and the paragraph that says that this expires in three years. the planning commission usually includes another paragraph that gives you expression to extend it to.

>> i don't know but this was approved by the department after three years. this was issued after three years as well. we believe that was done correctly because of the history of the project. we need to be reasonable looking at the history of the project. >> i understood that argument. >> and so confused. the motion that we mentioned earlier, this had to do with the original approval by the planning commission. this took place on february 24th, 2005. what prompted the issue? >> this is a requirement of a

conditional use authorization. it says that it is recorded not only from a conditional use but also the variance from 2007. that is being reported for both the 2007 othe variants. >> you agree there reading this leads to a great -- >> yes. it does then our position that this can go forward and that is the argument that we are putting forward. >> this goes more towards that the planning department want to clean this kind of thing up as opposed to having as deal with this tonight. >> i can understand that we felt simply that this was appropriate. >> maybe this is a policy if

this kind of thing exists out there that maybe someone would want to look at its. >> that is a surprise and we will look at that the future. >> think you. had -- to align >> why was there such a large gap? >> i am not been able to get clarity on this. i have not been able to get all of those fine details about the history of the project and why there was the gap. megaprojects sponsor will fill us in on that.

>> good evening. the first and the one to bring to the attention of the board is that the charter states that building permits issued pursuant to a conditional use authorizations may not be appealed to the board of appeals. that is something for the board of supervisors to deal with. this authorization might be made to the board of supervisors but the board might not be appealed to any government body. with respect to the notices special restrictions, the appellant them brings up paragraph two which is what we have been discussing. the aircraft nine states in

support of the decision that the minor modifications determined by the zoning administrator might be permitted if it is determined that such modifications are necessary in order to comply with the department of building inspections. this is what occurred during those few years. that gives the planning department broad discretion to order the permit holder to make modifications and to give the permit holder at the time to make those changes requested. we are hearing about historical preservation. i would like to make an argument that the three-year period was in 2008. the permit holders did not receive the deed for the recording in the assessment office until 2008 and it was immediately reported. in addition, i think we have to

understand that the state law trumps everything here. historical building code states that the purpose is for the public health and safety of the public and also to have enough flexibility to allow restoration of historic feature while still retaining its historic integrity and that precludes the fact that restoration is frequently made difficult by unnecessarily rigid interpretation of code. we have to keep in mind the spirit of what this project took so long. this is in chinatown, there is a sod that needed to be restored and protected. this is says mr. sanchez noted. there was the original brick in 1908 that needed to be protected.

with respect to the stairway issue that mr. sanchez brought up, that was an issue that was discussed and actually there was different opinions. they waited until there was a new code on that issue in 2007 before the issue of the variance for the permit holder to abide by

i would like to think the board of appeals for your time tonight, and i would also like to thank the planning department and dbi for the great job they have done providing this project. the environmental review with the permit nearly four years to complete. it was from the hard work of city officials that we were able to proceed with the project at 605 kearny street. i want to thank the people who signed the petition. iwe have over 1300 signatures ad all. we have signatures from across the country. from canada, taiwan, indonesia, china, and hong kong.

we have signatures of our neighbors and members of the local chinatown association organization that has a 150-year history in the audience tonight. we have a 97-year-old lady in the audience tonight to see if we improve. >> happy birthday. [applause] >> in the audience tonight are members of the public to support 605 kearny street, and i would like to thank them all and ask them to stand up to be acknowledged.

commissioner garcia: maybe we need to see who was against it. it's seems like everybody stood up. >> thank you. san francisco is a great city with great people and a great government. the government believes in protecting our property rights and the rights of our citizens. when the project is finished, we will gladly pay the increased property tax. the business and local sales tax revenue will help the city. we are living in tough economic times. i hope the board will please support the request to proceed with this project. it will be a great addition to chinatown and to san francisco, a city of love, peace, and