Here's the full video of what really happened at the San Francisco Board of Appeals, queued up to the correct starting time. KALW radio also has a story on it
What Tenderloin Housing Clinic and Randy Shaw isn't telling the public is that newly found documents have emerged that suggest that the Beach Motel was always a tourist motel since the 60's and that government bureaucracy and lost filings over the years have resulted in a zoning mess which Tenderloin Housing Clinic has been trying to capitalize on via lawsuits to convert the hotel into an permanent residential housing
The attorneys from both sides speak first and explain in detail exactly what's going on. Andrew Zacks, representing the owner, Patel, speaks first, followed by Tenderloin Housing Clinic attorney Steve Collier, followed by public comment. The entire video is 1 hour 21 minutes (queued from four hours of video)
full transcript after the jump
Monday, April 16. 2012
We will move back to item 5c.
The subject property is on judah street.
the appeal is protesting the issuance of a letter of determination to tenderloin
housing clinic on November 19,
1997, that find no legal nonconforming use of the
property as a tourist hotel has been established. At this hearing, the board
-- on April 1, 1998, the board voted to continue the matter to await action by the superior court.
This case was returned from the
college your calendar and with the consent of the party.
The President Has agreed to give
each party five minutes and we will start with the request.
>> let me explain to people.
Both sides -- five minutes is
more than a person would ordinarily get, not less.
" good evening, commissioners. I am the attorney for the request.
unlike the prior two cases , this case does present new facts.
These are new facts that
command the grant of a rehearing after these many years.
The main fact that we rely on in
requesting a rehearing is the
issuance in 2002 of a
certificate of use and a permanent to convert what the city had previously considered
to be a residential hotel to a tourist hotel.
The permit was issued after
application filed by my client from my office. After review by the department
of building inspection, and the
planning department, the
property was approved to be a 20-room tourist hotel.
Contrary to the arguments made
by the determination holder, the permit to convert that was
issued does involve a review of the planning code.
the permits specifically cannot
be issued without a determination that the proposed
use complies with the requirements of the planning code.
That can be found at section
41.15c of the san francisco administrative code.
Specific permits and certificate
that was issued to my client in 2002 was subject to both review by the planning commission and by the board of appeals.
that right was found in section 41.1 at six of the administrative code.
No appeal was filed this board in 2002.
The time to file an appeal of this particular certificate is long past.
He could have appealed that determination, tenderloin housing clinic could have appealed that determination.
the certificate and per cent
that was issued in 2002 is now final be determined that was
issued in to dozens to is now final.
This board needs to offer a rehearing.
I think the board' s inability to muster a decision shows how
difficult this case was for the boards, how complicated this question was for the board.
We think is fairly straightforward.
If you recall what occurred, it
was a motion made by commissioner to uphold the determination. That motion failed 1-4.
When a substantive motion was
made, one of the persons who
voted against it to uphold voted against the determination to overrule.
We had a person who voted no on the same issue in the same case.
Not sure why that happened. We regret that it happens.
that sense some signal to you that this is a troubling case to the board.
More importantly, it has been overtaken by events.
Case has been heavily litigated through numerous court proceedings involving but the city and the tenderloin housing clinic. The case was tried for rape
court here in san francisco -- the court -- the case was tried
for in court here in san francisco. The result in that case could be
viewed as a mixed in terms of
penalties that were awarded, the court refused to issue an injunction.
that case went up to the appellant court and the appellate court affirmed that decision. That decision is final.
The city filed a lawsuit trying to stop the operation of the property as the hotel.
Raise issues under the planning code, under the hotel ordinance.
the city abandoned that lawsuit and chose not to proceed. Here we are.
In the last 15 months, the superior court has dismissed that lawsuit.
We left with the certificate of use and the operation of the property over the last 10 years
as a tourist hotel.
There are significant other legal questions that we raised in our brief.
At the end of the day, it comes down to a question of fundamental fairness and trying
to avoid the manifest injustice.
In this particular case, allowing the kinds of inconsistencies that we see
incident -- we see in this city decision making to happen.
It had the effect of shutting
down his business after 35 years.
Allowing that to happen would send a poor message to our
i ask that you correct that injustice.
>> you represented him in the hearing that took place before this board?
>> I have represented them since 1996 in every proceeding before the city.
>> to make something clear, when
there is an lod, it is not a hearing.
Someone requests a letter of determination, that is not a hearing. >> correct.
The only hearing is when an aggrieved party files an appeal to this body.
i suspect the question May go to the question of whether advice was given by the city attorney' s office.
>> you can go wherever you want to go.
I am trying to get somewhere.
>> there was no hearing when it was issued. There was a request for information.
the information that we obtained determined that the determination was wrong.
It was sitting in the planning department' s files.
We did not even know about it. >> you might be answering the next question.
It was going to go towards why were you on able before this
demonstrate that this
business had been operating as a
tourist hotel since 1957?
>> the city did not bother to look at its zoning file.
This happened in a 30-day period. We were in court with the tenderloin housing clinic. We were defending ourselves against a whole array of claims.
By the end of the day, at those
records turned up in discovery in the litigation with the city.
Could we have found it? Perhaps I should have been more diligent.
The zoning administrator, when he issues a decision that was
shut down a small business an
intact family, should have looked at is on file. >> you are going beyond the question.
The next question has to do
with -- never mind, I will wait.
>> I very much appreciate your time.
>> I know you like cases that span many years.
the certificates of use that
was the principal part of your
President -- presentation, you
cited the section that talks
about what is involved in that .
In this specific case, it in the
issuance of this certificate, what review was there? >> I am not certain exactly how much review occurred.
I do know that I would be very surprised if the city attorney' s office did not have a look at it.
I do not believe whether there was a planning department review of that determination.
>> there is no categories where there are signatures required?
>> the application does have a procedure. It should. It should.
The code itself requires that a
review and requires that
approval in order for the permit to issue. i think that is fine on now.
This determination is not final,
which creates two competing decisions by the city.
>> even though this hotel -- hotel, motel, which is it? >> motel.
>> it has operated as a motel
ever since then, it was never a residential -- >> that is correct.
>> some procedure in order to
satisfy some administrative need
of the courts or the planning department?
>> involves the effort to trump the requirement of the administrative code.
The property had to be withdrawn from the residential market.
I do not believe you will see
any names, no evictions, nobody
was displaced from the property when that happens. I do not believe there is any
evidence of any substantial residential use. Of course, people do live in motels.
This property has been operating commercially since day one.
There was a mistake made.
i mean, the form was sent to the wrong place. It never got returned.
When you ever owned the property
before my client, the form never
got returned to say, no, we are not a residential hotel.
By default, at this property was classified as a residential hotel.
we reminded that with our litigation.
---- we remedied that with our litigation.
I hope this board does the right
thing and perhaps this inequity.
>> not that I want you to lead me where this court might I to
go, but with that represent the fact that it was never anything
but a tourist hotel ?
Without lead one to think that -- with that lead one to think that it should have been
overturned based on manifest injustice? >> it should have been overturned based on the facts in front of the board.
Four of the commissioners refused to uphold this.
>> you did not try to have it
>> we are here now doing that.
>> when I went back before the board in 1997, that was not the plea?
>> the plea was error of law.
The facts did not support the determination. That is the only facts in this record.
I do not know if you' ve had a chance to look at it. If you look at the rapid
, there are no facts of this hotel
was -- did this property was ever operated as a residential hotel because it was not.
>> there is no record when it was constructed and those permits were issued that said it was being billed as a hotel?
>> it is a motel, they are in the records, yes. There are also fell and broke records.
-- there are also found a book records. This is a motel.
>> y do you think a the zoning administrator did not take this into the account?
>> they were involved with litigation with a property owner.
The determination was part of a litigation strategy.
The city attorney was prosecuting that litigation and appeared here in front of this board and gave a presentation in an effort to get that determination of put.
it was being done as a part of a litigation strategy that failed.
>> is the documentation -- did it show up in the rehearing process?
>> we did not have any access to it.
Thank you very much, commissioners. >> I have a question.
I am looking at your papers on page 6.
It seems to me that commissioner
fung was asking questions, the
focus of your view, the the certificate of use, right?
>> it qualifies for a rehearing under your specific role.
It was a new fact before the board. >> ok.
The second paragraph under 0.3,
page 6, 2002 certificate
postdates 1998 determination. Therefore, to the extent they are in conflict, the certificate should be deemed to supersede the determination.
Is there any authority for that?
>> when you have a final
administrative decision, not
appealed, a permanent trumps and non-final one.
That is a straight forward doctrine.
I hope that is correct.
That doctrine comes from traditional law.
>> I do not see any citations of any law, that is why I am asking you. >> I think it is a very
straightforward and --
>> it is a case involving the
I would be happy to get you a citation on that.
Where there is an appellate
process, to challenge something, that process is not taken
advantage of by somebody wants to come back later and challenges.
There has to be some finality of a permanent.
>> the basis, related to the desire bite your client to dig out of the business of right -- by your client she gets out of the business of renting?
wasn' t related to evidence
submitted with respect?
>> that happened years earlier.
>> that was the basis.
>> the certificate had to be issued.
>> that is what you submitted in support, correct?
>> one of several things I submitted.
>> I have nothing further for now. >> thank you.
>> good evening, commissioners.
On behalf of the tenderloin housing clinic.
i want to address -- I would like to touch on one matter.
If I could have it on the screen. .
I want to clarify this flier
went out, apparently sending misinformation about our
involvement in trying to convert this particular hotel.
As stated, in two rooms for homeless people, welfare recipients, and felons.
We have had no involvement in any effort to house homeless people at the hotel.
we have not had any involvement
with the beach motel since it was resolved in 1998.
Mike understanding is that the mayor' s office has no designs on this hotel. I want to make that very clear.
We did not get involved with
this process until I got a call saying the board wants to resolve this matter.
it has been pending on your calendar for many years.
There will be some public testimony that somehow we will force this to be a homeless shelter. That is not the case.
That could continue as
apartments, the restriction on
renting houses -- has expired .
There is no move to try to turn this into any homeless shelter or housing for homeless people.
the problem with the argument is
that the face of the certificate
of use issued in 2002 the allies eight. It specifically states that the
designation does not supersede the requirements of any other city code.
those designations -- is only issued because the entire property has been withdrawn from residential use.
That is the reason the certificate of use was issued.
The court of appeals says the hotel owner does not have to
comply with the provisions of
the hotel ordinance.
Both the city and Mr. Patel agreed to be bound.
It specifically said it has nothing to do with the zone or the planning code and the court of appeals said their decision has nothing to do with the zoning and planning code.
Also, the courts of appeal have
routinely stated that the invocation does not give the
property owner are right to do it yourself zoning. Ok?
They cannot invoke it and not
complied with zoning provisions
that uniformly applied to this property and other properties in the neighborhood and get some other the subsequent use of the
property other than residential
housing, residential rental housing, excuse me.
They do not get a right to surpass the planning code provisions that generally applied to the neighborhood.
Every single court of appeal
decision has confirmed that. It is and the statute itself.
All this appeal is about is
whether the zoning administrator determination must correct.
And it clearly was because
under standard nonconforming
law, it is up to the property
owner to show evidence of the nonconforming use.
All the evidence that is evidence that was cut and was presented at the initial hearing.
As you can tell from reading the transcripts, it was a full and fair hearing.
No additional evidence was
provided that convinced this
body to overturn the zoning administrator' s decision. Therefore, it is upheld.
He is also incorrect but somehow
the cou -- designing administrators determination was final at the time this board failed to uphold that. It was final.
The request for rehearing does not suspend the determination.
It was a final decision.
Even if it were to be determined
to apply only -- to apply it to limit the planning codes
provisions, which it does not,
even if it was, it was not prior
to this zoning administrator' s determination. Therefore, it is not binding on this board. >> let' s deal with the first thing you started with. The flier. what was the original reason
that they got involved with this to begin with?
>> we have been interested in
maintaining the supply of residential hotels in san francisco. If you know the history of residential hotels, you know there was a tremendous amount of demolition and removal of residential hotels back in the
tenderloin back in the late 1970' s and early 1980' s.
That is why the ordinance was enacted.
The tenderloin housing clinic
was one of the chief sponsors, one of the major organizations
pushing for the preservation of residential hotels.
That has been our historic mission.
We have uniformly monitored
residential hotels to make sure they are in compliance. Since the beach hotel had a 20
residential certificate of use,
and zero tourist use, we noted
that it was
the owner agreed and signed a stipulation.
That was appealed, lost at the
court of appeals >> you have pretty much answer that question.
The original intent was to
maintain whatever housing was
there even though it has been testified to that there was no housing.
>> the report said that there was residential tenants in the hotel.
>> you would dispute that it ever operated as a hotel?
the reason to do that was to preserve what it considered to
be housing was the same next -- the reason to do that was to
deserve as considered housing or
was this a mischaracterized use?
>> we have never seen it characterized at the time that the zoning change.
We requested the lod to see whether this was a lawful
>> you know where I am going.
i am much more concerned about the legal finery are around this. Was it really a hotel that someone had not done proper
paper work on and so therefore
it is classified as residential when in fact as a matter of operation, it was actually a
>> because the bird and -- >> yes, I know.
-- because of the burden .
>> yes, I know.
>> there was a residential use
as well as a tourist to use
i can assure you that on the screen.
>> they were able to operate as
residential and they were required to.
>> yes, this would be under the
hotel convergence use.
>> so, to protect their own interest, they were possibly lied about the use in order to
>> or, they could be operating as a residential mixed use hotel, of which there are many
in san francisco.
>> they are under violation because they' re not allowed to operate as a hotel? >> correct.
>> I will show you some random
the report to the city and and
the data that is.
The 15th, 1985, this has two residential units.
>> they are making a declaration against their own interest.
>> you can read by the week for a number of weeks.
>> any other questions? Thank you.
>> Mr. Sanchez.
>> thank you, good afternoon.
I am coming to this with fresh chives.
I was not the zoning administrator when the letter of determination was issued but I
did review the materials and tried to compile a history of facts.
We can go through what May have
happened and the background.
It appears that the permit in 1957 to build a building that
would contain 12 -- 1012 in units. They did convert that to a motel
use and as appellant showed,
this shows minutes from a planning commission meeting
which was in 1957, 1958.
As reported, a letter from the property owners that they wanted
to convert this to a motel use.
The motel use was converted.
The records from 1960-61 show this as a motel.
there is one dwelling unit associated with it.
That to continue for many years.
>> was this ever occupied as the residential use?
>> no, it does not appear that
it would have been occupied as residential. Maybe they had received a
permit, been granted a permit, and then decided to change their mind.
we have a survey that shows this as a motel. How long are they doing this for? One night? Seven nights?
Is probably is a feel
fluctuation and variation in the construction and operation.
1979 is a critical year, that is the hotel conversion and
demolition ordinance which said that if you are a hotel that has
residential use and was looking
at occupancy of 32 days or more , that would be covered under
this conversion ordinance.
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