Letter of Determination

SAN FRANCISCO PLANNING DEPARTMENT August 28, 2012 David Nale 126 Fillmore Street San Francisco CA 94102 Letter of Determination Site Address: 124-128 Fillmore Street Assessor s Block/Lot: 0868/021 Zoning District: Residential Transit Oriented (RTO) Staff Contact: Sara VelIve, (415) 558-6263 or sara.vellve@sfgov.org 1650 Mission St. Suite 400 San Francisco, CA 94103-2479 Reception: 415.558.6378 Fax: 415.558.6409 Planning nformation: 415.558.6377 Dear Mr. Nale: This letter is in response to your July 31, 2012 request for a Letter of Determination regarding the property at 124-128 Fillmore Street. This parcel is located in the Residential Transit Oriented District with a 40-X Height and Bulk District. The request is to extend the expiration date of the Variance Decision Letter of Case No. 2005.0228V, dated November 10, 2005. The variance decision requires that a Building Permit be issued within three years of the approval date, November 10, 2008. To date, extension of the November 10, 2008 expiration date has been granted twice. 1. On August 20, 2010 the Zoning Administrator extended the expiration date until November 10, 2011 due to the time elapsed as a result of appeals and the revocation process related to building permit application 2005.06.17.5347. 2. On July 5, 2011, the Zoning Administrator, through staff, received a request to extend the expiration date until resolution of a request for Discretionary Review (DR) related to Case No. 2010.1104D, Building Permit Application No. 2009.06.22.0907 for a change of use from three dwelling units to group housing to address a use violation on the property. A hearing with the Planning Commission to address the DR took place on September 22, 2011. After the DR hearing, the Zoning Administrator, through staff, issued an email on December 22, 2011 agreeing to extend the expiration date until August 10, 2012, the approximate time it took to resolve the DR. After the DR hearing it is was learned that outstanding fees were due to the Planning Department as a result of staff time and materials in excess of the initial permit fees. On October 18, 2011, staff approved the 2009 permit on the basis that the outstanding time and material fees would be paid prior to issuance of the permit by the Department of Building Inspection (DBI). The permit was routed to DBI on the date it was approved by staff. On December 8, 2011, DBI routed the 2009 permit back to the Planning Department. Between approximately December 8, 2011 and February 23, 2012, you disputed the outstanding fees. As a result, the Planning Department reduced the

David Nale August 28, 2012 126 Fillmore Street Letter of Determination San Francisco CA 94102 124-126 Fillmore Street fees and negotiated a payment plan with you. The Department released the permit for issuance on February 23, 2012. The permit was issued by DBI on February 24, 2012. You have requested an extension of the expiration date of the Variance Decision Letter due to the time it has taken to resolve the violation, the 2009 permit and coordinate a garage permit. To date, the Variance Decision Letter has been extended from November 10, 2008 until August 10, 2012, approximately four and a half years. In response to your request, I will extend the expiration of the Variance Decision Letter to Monday, November 26, 2012 (more than 60 days, which is the approximate time the Department was involved in resolving payment of the outstanding fees). Granting this extension is also intended to address a request for reasonable accommodation under Title II of the Americans with Disabilities Act. Please note that this is the final extension that will be granted for the subject Variance Decision Letter. The subject building permit must be issued by November 23, 2012. Failure to obtain the required building permit by that date will render the Variance Decision Letter null and void. APPEAL: If you believe this determination represents an error in interpretation of the Planning Code or abuse in discretion by the Zoning Administrator, an appeal may be filed with the Board of Appeals within 15 days of the date of this letter. For information regarding the appeals process, please contact the Board of Appeals located at 1650 Mission Street, Room 304, San Francisco, or call (415) 575-6880. Sincerely, Scott F. Sanchez Zoning Administrator cc: Andres Power, Aide to Supervisor Scott Weiner Carla Johnson, CBO, CASp, Interim Director, Mayor s Office on Disability Deborah Stott, 73 Germania Street, SF, CA 94117 Sara Veilve, Planner Neighborhood Groups SAN FRANCISCO PLANNING DEPARTMENT

Sf ic 3 NW D David Nale 126 Fillmore Street - San Francisco, CA 94102 July 31, 2012 Scott Sanchez, Zoning Administrator San Francisco Planning Department 1650 Mission Street San Francisco, CA 94103 Dear Mr. Sanchez: RECEIVED C!TY & COUNTY OF S.F. PLANNING DEPARTMENT i1 Please accept this request and $588 payment for a Letter of Determination. My variance for the elevator garage at 124-128 Fillmore Street @xpires next month and I request an extension of that deadline. ( I filed BPA 20081 0023206for the garage after the original permit was revoked by the Board of Appeals (No. 200506175345) I understand the Group Housing Use permit had to be approved before the garage permit could be reviewed by the Planning Department. The previous garage permit had been revoked due to questions about the use of the building. Planner Sara Vellve s email to Susanne Kelly dated April 27, 2011 confirms that the Planning Department put the garage permit on hold until the group housing permit was approved. (see attached) Nevertheless, through my legal counsel I repeatedly asked the Planning Department to process the garage permit while reviewing the use permit to no avail. The last extension of the variance was done because the filers of the discretionary review for the 200906220907 Group Housing Use permit wanted the hearing postponed due to a change in their attorney. We agreed to the continuance with the understanding that the variance would be extended to provide me with enough time to obtain the garage permit. The hearing was postponed as the filers requested and on July 5 you emailed that the variance deadline would be extended for approximately 9 months (from November 10, 2011 to approximately August 10, 2012). (see attached) Unfortunately, despite my best efforts, the August 10 deadline has not given me sufficient time for several reasons. First, the use permit did not issue until February 23, 2012 and therefore I could not begin the garage permit until nearly March, just four months ago. The Discretionary Review Hearing was held on September 22, 2011. The Planning Commission ruled that the Group Housing Use could be implemented. However, I still had other work to complete before the Group Housing Use permit could be issued including composing and filing amended restrictions and reviewing planning department fees. A Declaration of Agreement of Restrictions was filed in the recorder s office before the DR Hearing. At the hearing, the Planning Commission asked for changes to the restrictions. A First Amendment to Declaration of Agreement of Restrictions was drafted to address these requests and on November 17, 2011 the amendment was filed with the recorder s office. The Declaration and First Amendment are intended to address neighbors concerns. The Planning Department would not allow me to proceed with the Garage Permit until outstanding fees for the Group Housing permit had been paid. On November 4, 2011, I was presented with a bill for $15,456.06 in Planning Department fees. I asked for a review of these fees and on December 23, 2011 the fees were reduced to $12,773.96. On January 27, 2012, the Planning Department gave me an installment plan to pay the fees. The Planning Department allowed me proceed with the Garage Permit after the first payment on February 15, 2012 and on February 23, 2012 the Garage Permit was issued.

I disputed the fees in small claims court and on June 21 2012 the small claims judge ordered the city to refund $9252.21 of the fees. The department has appealed this decision. After being delayed until nearly March, I began the work for the garage permit. This involved Shelley Caltigirone s review and comments on the plans due to historic issues. As I understand, the Department put the garage permit on hold until the use permit was approved. Thus I could not approach Ms. Caltigirone for her review until the use permit was approved. I revised the plans to incorporate her comments to make the fa ade compatible with the adjacent structures. The new plans were also changed to specify only non-combustible materials and clarified to show that the garage is indeed a separate structure since this was not clear before. In May, I learned from Kevin at the Planning Information Center that a new street tree would be needed. To address this requirement, I prepared and submitted proposed landscaping plans and a Tree Planting Application to the Department of Urban Forestry. In addition, the complete Neighbor Notification packet was prepared. On May 24, 2012, I filed for the permit. However, when I got to the planning department you would not accept the plans and asked for a Pre-Application Meeting to be held with the neighbors. I now know that this is a new requirement for the planning process, but I did not anticipate that you would require another meeting since there have already been several meetings and hearings with the neighbors about this project. This meeting added to the time it took for me to proceed with the garage permit. On July 5 (after the necessary invitations and notification period) I did hold the Pre-Application Meeting with the neighbors. They had the same set of concerns as they had in the past. I outlined these concerns and my responses in the "Summary of discussion from the Pre-Application Meeting". On July 9, this summary was submitted with the plans to you and $3,457.07 in fees were paid. Given the Department s prior review of the first garage permit I believe its processing could not have required time beyond August 10 for the Department to approve the permit. However, I believe the Department has not taken any steps including sending a Notice of Requirement to me, if one is needed, or preparing the neighborhood notice. I understand the Department has limited resources and is being diligent in its efforts. Likewise, I ask the Department to give me the same courtesy. The current variance expires next month. As outlined above, I have been working in good faith to move the project along as quickly as possible, especially given my HIV side effects which often slow me down. However, I anticipate that the project will not be approved prior to the deadline of August 10. The variance decision states "However, this authorization may be extended by the Zoning Administrator when the issuance of a necessary Building Permit.. is delayed by a City agency or by appeal of the issuance of such a permit...pursuant to this provision I request that the Zoning Administrator issue another extension of the Variance. Thank you for your assistance with this project. 4 Sinc 1 9 1~ David Nale CC: Sara Vellve, David Lindsay, Brett Gladstone, Mayor s Office on Disability End: Emails, $588 Payment

Susanne Kelly From: Sent: To: Cc: Subject: SaaVellve(sfgov.org Tuesday, July 05, 2011 1:29 PM Susanne Kelly Brett Gladstone; Ian O Banion; David.Lindsaycsfgov.org Re: 124-128 Fillmore All - The Zoning Administrator would be willing to extend the Variance Decision an for a period of approximately 9 months as DR was filed in December of 2010 and is expected to be heard in September of 2011. This can be memorialized through a Letter of Determination or email. Please confirm that I should let the DR requestor and Commission Secretary know.that the case will be continued to September 22, as the 15th is now closed. Thanks. Sara Sara Velive, Northwest Team San Francisco Planning Department 1650 Mission Street, Suite 400 San Francisco, CA 94103 P: 415.558.6263 F: 415.558.6409 Hours: M-W 8:45 to 1:00, Th 8:45 to 4:00 "Susanne Kelly" <Susanne @ gi ads ton eassociates. corn> 06/30/2011 05:07 PM To <Sara - Vellve@sfgov.org > cc "Brett Gladstone" <Brett@gladstoneassociates.com >, "Ian O Banion" <ian@gladstoneassociates.com > Subject 124-128 Fillmore Sara, We:woul.d:be :willing to..o if the Variance Depision 1. is. extended to provide the owner sufficient time to obtain the permit for the parking garage after the -15 hearing.. The DR may be resolved as part of a MOO and we would like to have the opportunity to work with the neighbors to do so. We think this is in the interest of the neighbors as well because the MOD could contain conditions that the Department and/or Commission may not be able to attach to the permit (such as conditions that require the Department to monitor or are outside the City s control). We are optimistic that we can accomplish the MOO given that the neighbors have requested the continuance with the intent of working out the MOO. 1

We ask that the Department begin processing the garage permit so that it is ready to issue. at the time the NOV can be lifted. Can the violation be lifted if the Planning Commission denies the DR and approves the group housing or do we need the building permit for the group housing to issue? Finally, we understand the Department may have a concern that the number of proposed parking spaces may be more than the Department would be willing to grant with the group housing use. We believe this issue is tied to the permit itself and not the Variance Decision. Therefore, extending the Variance Decision should not have an effect on this issue. As you know, I will be out of the office from July 1-12. Please contact Brett or Ian O Banion during my absence. Thank you, Susanne Kelly, Esq. Gladstone & Associates 177 Post Street, penthouse San Francisco, CA 94108 (415),434-9500 fax (415) 394-5188 www.gladstoneassociates.com 2

Susanne Kelly From: Sent: To: Cc: Subject: Attachments: Sara.Vellvesfgov.org Wednesday, April 27, 2011 3:21 PM Susanne Kelly Brett Gladstone; David.Lindsay'sfgov.org Re: 124-128 Fillmore Street 124-128 Fillmore Street.PDF EONLx 124-128FIlfrnoce StrØet.PDF (1... Susanne - I ve ernailed Jimmy Terrell about the July 21 hearing date, and asked him to get back to me by Monday. In the near future I ll send an email about some concerns we d like to see addressed. Atsc: - there,isa pending permit and variance for, a proposed gar-agẹ.-in t:he:.rear:yard.:.the permit. is. on hold until te use gets worked out and the variance expires in November. I ve attached an LOD for your reference. Sara (See attached file: 124-128 Fillmore Street.PDF) Sara Veilve, Northwest Team San Francisco Planning Department 1650 Mission Street, Suite 400 San Francisco, CA 94103 F: 415.558.6263 F: 415.558.6409 Hours: F4-W 8:45 to 1:00, Th 8:45 to 4:00 "Susanne Kelly" <Susanne@gladston eassociates. corn> To <Sara. Vellve@sfgov. org > 04/26/2011 05:02 cc PM "Brett Gladstone" <Brettgladstoneassociates. corn>, <David. Lindsay@sfgov.org > Subject 124-128 Fillmore Street We have been retained to assist David Nale with his project. We plan to reach Out to the neighbors in an effort to address their concerns but will need some time to do so. In addition, Brett is unavailable on the current hearing date of May 19 and has several conflicts in the following weeks. Thus, we request that the hearing be continued to July 21. We would greatly appreciate it 1

if you would contact the DR Requestor to find out if this new date is acceptable. Please let me know if you need us to do anything else to make this request official. Thank you, Susanne Kelly, Esq. Gladstone & Associates 177 Post Street, penthouse San Francisco, CA 94108 (415) 434-9500 fax (415) 394-5188 www.qladstoneassociates.com

SAN FRANCISCO PLANNING DEPARTMENT 1650 Mh" SL Letter of Determination Silb 400 San Funcisco, CA 94103-2479 August 18, 2010 415.658.6378 David Nate Fax: 124 Fillmore Street 415.558.6409 San Francisco, CA 94117 Infotni1on: RE: 124-128 Fillmore Street 415.558.8377 Block 0868 Lot: 021 Dear Mr. Nale: This letter is in response to your request for a Letter of Determination regarding the property at 124-128 Fillmore Street This parcel is located in the Residential Transit Oriented (RTO) District with a 40-X height and bulk limitation. The request is whether Section 312 notification is required for a change of use from three residential dwelling units to group housing, and whether the expiration date of the Variance Decision Letter associated with Case 2005.0228V can be extended as a result of appeals by neighbors. Two building permit applications have been submitted proposing changes on the property: No 2009.0612.0907 for a change of use and construction of a stair penthouse and, No. 2008.10.02.3200 to construct a multi-level garage in the required rear yard of the property. The authorized building use is three residential dwelling units. Building Permit Application No. 2009.06.22.0907 was submitted to change the use from three dwelling units pursuant to Planning Code Section 209.1(e) to group housing pursuant to Planning Code Section 209.2(a). Planning Code Section 312 does not require neighborhood notice of this change in use categories. However, this building permit application includes construction of a stair penthouse for fire egress, which constitutes a building expansion under Planning Code Section 312. Therefore, neighborhood notification is required for Building Permit Application No. 2009.0622.0907. On Mardi 8, 2005, Variance Case No. 2005 0228V was filed with the Planning Department to construct a three-car, multi-level garage within the required rear yard of the property. On November 10, 2005 the Zoning Administrator issued a Variance Decision Letter approving the variance request Building Permit Application No. 2005.06.17.5347 was submitted and concurrently processed with the variance request to construct the garage. On approximately May 21, 2007, a neighbor filed a timely appeal of the building permit with the Board of Appeals. On approximately April 2 2008, the Board of Appeals revoked the above-referenced building permit to construct the garage. Variance authorizations are deemed void and cancelled if a building permit has not been issued within three years from the effective date of the decision. However, this authorization may be extended by the Zoning Administrator when the issuance of a necessary Building Permit or other City action is delayed by a City agency or by appeal of the issuance of such a permit or other City action. The variance authorization for Case No. 2005 0228V expired on November 10, 2008. Due to the time frame of the appeal and revocation of the garage building

David Nale August 20, 2010 124 Fillmore Street Letter of Determination San Francisco, CA 94117 124-128 Fillmore Street permit, the Variance authorization expired without issuance of the building permit. A subsequent building permit application (2008.10.023200) has been submitted for the garage structure. You have requested an extension of the expiration date of the Variance Decision Letter due to the time elapsed as a result of the appeals and revocation process. In response to your request, I will extend the expiration date of the Variance Decision Letter to November 10, 2011. If you believe this determination represents an error in interpretation of the Planning Code or abuse in discretion by the Zoning Administrator, an appeal may be filed with the Board of Permit Appeals within 15 days of the date of this letter. For information regarding the appeals process, please contact the Board of Permit Appeals located at 1650 Mission Sheet, Room 304, San Francisco, or call (415) 5756880. C Scott F. Sanchez Acting Zoning Administrator cc: Ross Mirkarimi, District 5 Supervisor Sara Velive, Planner Deborah Stott, 73 Germania Street, SF, CA 94117 DQcLITSVETT IS CFAl1M4JM24FncevJac 2

LN7 /E David Nale 126 Fillmore Street San Francisco, CA 94117 March 21, 2009 Larry Badiner Zoning Administrator San Francisco Planning Department 1650 Mission Street, Suite 400 San Francisco, CA 94103 RECEIVED MAR 23 2009 CITY & COUNTY OF S.F. PLANNING DEPARTMENT RECEPTION DESK Dear Mr. Badiner: We respectfully request a letter of determination with respect to the following: Property Address: 124-128 Fillmore Variance decision dated 11-10-2005 REQUEST FOR LETTER OF DETERMINATION 1. The Variance and the Decision on the Variance allowed the construction of a 3 level elevator garage and roof top deck related to an application at the property located at 124-128 Fillmore as a three unit apartment building. Is use of the property as Group Housing, as permitted under the code, a consistent residential use, and not a change in use from multi-family residential to group housing so as not to constitute a change of use of the structure and building with respect to the Variance and the applicable permits and permitting processes and procedures? 2. Did the filing of an appeal by a neighbor, and the length of time for which construction was delayed pursuant to the appeal, toll and extended the three year time frame for the application of a permit to build the garage on the property? And therefore, is the October 2, 2008 application for a permit by the property owner for a permit within the three year period consistent with the intent of the original Decision on the Request for a Variance? Please note that the $535.50 fee was already submitted on February 12, 2009. Respectfully submitted; David Nale Tex Ritter, attorney for property owner

Susanne Kelly From: Sent: To: Cc: Subject: Susanne Kelly Friday, July 22, 20111:24 PM David.Undsay@sfgov.org Brett Gladstone; Sara.VetIvesfgov.org RE: 124 Fillmore garage David, We would like to speak to you about the timing of the approvalprocess for the garage. The owner would like you to begin processing the filed permit for the garage now so thal it is. as far along in the approval process as possible and can be immediately approved when the group housing use is approved. We understand that the Department will not require the garage to be re-noticed. We would like to confirm this understanding and that the Department will begin processing the permit. We also would like to discuss the Department s support for the garage. It is our understanding that the Department has had conversations with the owner about supporting the garage with three parking spaces. We would like to discuss with you whether this is the case or whether the Department now only supports a garage with fewer spaces. The group housing use allows one space for every 3 rooms. As you have been involved in the conversations related to these issues, we feel it is especially important to meet with you in particular. Finally, a curb cut was added with permit in association with the garage permit. We now are hearing (perhaps incorrectly) that the Department would like the owner to restore the curb cut as a matter of good faith pending the outcome of the DR hearing on the group housing use. We feel this is unfair because (1). a permit was in place when the curb cut was installed (even though it was revoked when the garage permit was revoked) and (2) if a curb cut without a garage structure is a Code violation, it has been the custom and practice of the Department that when a person is processing a permit to cure a violation, the Department allows the process to proceed without requiring the unpermitted conditions to revert back to the original state. Susanne Kelly, Esq. Gladstone & Associates 177 Post Street, penthouse San Francisco, CA 94108 (415) 434-9500 fax (415) 394-5188 www.gladstoneassociates.com Original Message----- From: David.Lindsay@sfgov.org [mailto: David. Lindsay@sfgov.org ] Sent: Thursday, July 14, 2011 7:29 AM To: Susanne Kelly; Brett Gladstone Cc: Sara.Vellve@sfgov.org Subject: 124 Fillmore garage hello Susanne & Brett - I got your message, Susanne, requesting to meet with me in Sara s absence - I am snowed under for the next several days, but perhaps you could outline in an e-mail what it is about the garage aspect of the project that you are concerned about so that I can attempt to respond - I ve got 3 planners out either on vacation or med. leave, and am having to cover a lot of bases, so meetings are difficult right now - thank you for your understanding David Lindsay, Senior Planner Manager, Northwest Quadrant Current Planning

1650 Mission Street, Suite 400 San Francisco, CA 94103 david.lindsay@sfgov.org 415.558.6393 (voice) 415.558.6409 (fax)