Skip to main content

tv   [untitled]    December 10, 2012 1:30am-2:00am PST

1:30 am
would be 15' and beginningo with likely be 10' tall at installation . that is a slower-growing tree. >> thank you. >> any public comment on this item? okay, seeing none, mr. vigneau, you have three minutes of rebuttal, if you have anything further to add? >> i appreciate your kindness in allowing me a few minutes more. what mr. mauer -- >> could you speak into the microphone, please? >> what mr. mauer presents, he showed me is the company who came to check on those trees, but i would be glad and satisfied if i would have seen the plan of the work that is going to be done. with this sentence, i will not any longer insist after this. thank you very much. >> did you just say you are not longer insisting on
1:31 am
appealing this? >> what i mean is that i have mentioned that i suspect this tree was [speaker not understood] they went to make a lot of work in the park in that area and they want to replace the area where the children are playing and i believe they want to replace these with basketball courts and of course, they will make a lot of transformation, which requires machinery to be coming to do the work. >> okay. >> so you are saying that you suspect - >> excuse me? >> you are saying that you suspect that they want to remove the tree not because it's failing or it's decaying, but because they want to make room for entry of machinery? is that what you are trying to say? >> i did not understand all of what you just said. >> yes.
1:32 am
maybe we can let the representative from parks and recreation address that concern you just stated and your brief as well. >> i think his concern is that the project, the capital work that we're doing and the construction work is the reason we're proposing to move this tree. in fact, the oppose. it was identified through bureau of forestry after they found that decay and branch break. the picture that you have in your package shows the entrance to the park, playground. it's going to be maintained in that configuration after we're done with the renovation. what we're doing is replacing some of the sidewalk along that stretch to comply with ada requirements. so we're going to be pulling out those trees obviously have an invasive roots and they are pushing the sidewalk up. so we're going to tear up the sidewalk and replace the sidewalk so we don't have tripping hazards during that stretch of sidewalk. >> thank you very much.
1:33 am
>> thank you. >> thank you. miss short, did you have anything further to add? okay. why don't you hold onto those until the board votes? you can leave it there if you want. it's up to you. that is fine. >> did mr. mauer have any last comments? >> did you need other time for rebrutal. rebuttal. >> can it withstand a 48" box? >> i have to look at the overall budget. the box size doesn't always indicate the size of the tree as larger. it's more of the root ball size that is larger and in some cases the root ball get too large to put in a sidewalk
1:34 am
applications. if your budget could handle it, i would suggest that you go to larger trees, so that the visual transition occurs a little bit better with the resident as round -- residents around the area. >> i will have to evaluate the budget. >> unless you have additional questions for the parties, the matter is submitted. >> i think i would move to deny the appeal.
1:35 am
i have been pretty well convinced this tree has issues and there is a risk in leaving it up. and as i think i said on the first hearing on the tree, it's nobody's favorite chore to get rid of a beautiful tree, but i think it presents a danger to the public and there is a reasonable plan for replaying it. so i would move to deny. >> would that be on the basis of the dpw order which reflects those issues? >> yes? >> okay. so that motion is made by commissioner lazarus to deny the appeal and uphold the permit. on the basis of the dpw order. vice president fung? >> aye. >> president hwang? >> aye. >> commissioner hurtado? >> aye. >> and commissioner honda? >> aye. >> that motion carries and the permit is upheld. thank you.
1:36 am
>> i would like to call item no. 6 and i want to make sure that thetern for the appellant in that case is in the room. could you raise your hand if you are here, mr. girardi? excellent, just walked into the room. appeal no. 12-085, cambon connoisseur cooperative, inc. versus the zoning administrator. 33 cambon drive aka 6-85 cambon drive, appealing a letter of determination dated july 10 20 12 addressed to matthew girardi regarding whether a medical cannabis dispensary use would be permitted at the subject property. >> my name is matthew girardi and i'm a lawyer and represent the managing patient members of a proposed collective called
1:37 am
cambon connoisseur collective and we're challenging a letter of did determination issued by mr. sanchez in which he found 33 cambon drive is not a suitable location for a mcmcd site because it may be within 1,000 feet of a park, namely the merced playground. california law mandates that the site be 600' away from schools, churches, places where people get treatment for drug and alcohol. the city of san francisco enacted planning code section 790-141 which increases the radius from 600' to 1,000'. the public policy behind the law is clear, and that the city of san francisco and, in fact the managing patient members of cambon collective believe that the children have to be protected from collectives. and from inadvertently coming
1:38 am
in contact with medical cannabis. the difficulties in measuring the distance are twofold. one is the size of the two locations. :based on the measures [r-eurpt/]s requirements from the city of san francisco, [speaker not understood] the second difficult in measuring the distance between the two is there is junipero sero road and the other street bifurcate the two locations. as a result of having a almost a highway bifurcating the area,
1:39 am
the likelihood of a child walking from the school to the collective is zero. there is no crosswalk and protected crossing and you have to walk nearly a mile and cross and come down. so although the public plice is in place to protect children from inadveteranly walking into a collective and i understand there may be children at the merced heights playground. although it's difficult to measure the exact distance between the two sites and we have had it measured four times and the four times i got it measured i got different distances, 977, 991 and 1005 between the two locations. and although it's difficult to measure what is not difficult to determine and not difficult to recognize is the
1:40 am
overwhelming community support for cambon. caribbean mccoy the director of the the friends and neighbors of merced heights playground has written a letter of support. the park merced merchant as the associations, the neighborhood association agree that 33 cambon would be an ideal location. my clients and i appreciate the law. we understand the importance of this type of structure to keep the inadvertent interaction of these two things from coming into each other. but more important than feet, is the way that the collective is operated. first and foremost of you have to have a professional and non-discrete location, storefront and what that is what they have. the second most important thing is to maintain impeccable security. i represent collectives regularly all throughout the
1:41 am
state and the way you get into trouble is by having a minor get into your collective. having a minor end up with your medicine, and we agree that is a huge problem. that problem is not made any less safe by this arbitrary 1,000' requirement. so in closing, i humbling request that you grant -- that you find that mr. sanchez abused his discretion by issuing the determination that 33 cambon site is not a suitable site for a collective. nowadays the biggest problem i encounter is not with spacing, depending on the city you are in, but the presence of clustering of the mcds and when they enacted the statutes, what is happening that you will have two or three collectives on one corner or two or three on one block and clearly at the
1:42 am
proposed site at 33 cambon we don't have a cluster. and the absence of the cluster is one thing that gives community support that it needs a medical cannabis dispensary in its location. thank you. >> mr. girardi, i have a question for you. if we were to follow your method of measuring within 1,000', the method you are proposing, which is walking, rather than as the crow flies. let me finish my question. wouldn't that create arbitrariness in the future in that we would have a different method of determining that for every case that came before us? >> [stp-eu/] i wasn't saying that is how we should take the tape measure and walk the route that i attempted to walk. i was merely demonstrating in opposition to the public policy is that the public policy is completely inapplicable in this situation because it's impossible to walk from one to the other. it's not possible. i mean, unless you are willing to walk two or three miles and
1:43 am
that is clearly out of the scope of 1,000' requirement. i used that to demonstrate how difficult it would be that the legislators wanted to cure by enacting the 1,000' radius? >> in your brief your argument is that you are outside of the 1,000' requirement, is that correct? >> we had it measured four times and came up with four different measurements. one was 1005 and that was outside. that is not taking into consideration that you walked the route i walked. these are now square parcels, you know, laid out on a grid? they are long meandering things and it's impossible to tell you, so you have to think maybe this would be the closest spot spot. it's really impossible to determine. >> okay. so what would bet be the method you would propose
1:44 am
that would be a fair method? >> the fairest method to measure from site leased for the specific purpose of running a medical cannabis dispensary to the closest spot to. it and the stripmall is different stalls that that have been measured out. cambon is at the far right, but they measure it like the closest spot to the collective and it's really not fair. >> okay. so by your measurements, if you were to set the standard in measuring the distance should be in it's in the closest spot to the dispensary should be the point at which they take the tape measure, take it to the perimeter of the site? for example the playground, you said was on an acre? >> correct. >> so it would include the
1:45 am
acreage, not just the building structure? >> that is correct. aside from the inches and miles and feet that is supposed to somehow protect the children from coming into contact with medical cannabis, we have to be smarter than that. we have to look at what the likelihood. >> i don't think anyone asked you a question. you are continuing to argue. is your time still going? a pollsing if i apologize if it is. >> do you have time left? >> keep talking? >> sorry about that. >> i understand that we have to keep people away, but the eight lanes' of highway do that, more effectively than a child not walking a thousand feet, i think. >> are you finished? >> i am.
1:46 am
>> has your client already entered into a lease for the property? >> yes, they have. >> have you submitted an application for this in addition, to the lod? >> yes. >> and where is that application at this point? >> i think it's in a buenos until we have permission from you to move forward. >> what is before us is the letter of determination. >> that is correct. >> thank you. >> setting aside the arguments how one should measure under these particular circumstances would make the distance 1005'? >> that is correct. >> and the other question that i had relates to some of the process questions. this is the third attempt to
1:47 am
get an lod and it just strikes me as why did you do that? i mean was it in order to make your appeal within the time period? >> the first appeal was not submitted by me, but submitted by someone unrelated. >> the lod? >> the request for a letter of determination. my first request for a letter of determination was -- i was told that -- i was given legal advice some someone on the phone at the board of -- and i'm trying to think -- the planning commission that i should file a dr application after getting a letter of determination. and i started to do that and they said oh, no, you have 15 days to file. i was advised to simply resubmit my letter of determination and file for this hearing. >> you were saying as of march
1:48 am
19, 2012, the first time you are taking action on believe behalf of your client you went the route of a dr request? >> that is correct. >> okay. i don't have any further questions for now. >> thank you. >> thank you. >> before we hear from the zoning administrator, i just want to see if there is anyone representing the subject property owner, who is also considered a party to this appeal? that person is not in the room. mr. sanchez, go ahead. >> thank you, good afternoon president hwang, members of the board and welcome commissioner honda and look forward to working with you. scott sanchez for the planning department, the subject roproperty is located with an nc s, a neighborhood-commercial shopping sister zoning district. there are very few of these. it's a mall essentially a larger parcel.
1:49 am
we did review several letter of determination requests related to the usablability usable of the site for medical cannabis dispensary and found that the property was located within a thousand fee of merced playground that contains a recreation center serving people underage 18 years of age. on march 8th, 2012 mr. girardi requested the possibility of locating a mcd. and we issued a letter of determination stating it was
1:50 am
within a thousand feet. i would note that there was a discretionary review filed that was filed after the letter of determination was submitted. it was filed march 16th, 2012, canceled the same day that the letter of determination was issued. the letter of determination as standard boil plate language saying that if you found this is an abuse of discretion -- so the letter of determination was requested on june 15th we received another letter of determination request that had slightly different argument so
1:51 am
i think that is not in dispute, what is in student is the appellant would like or finds there is an error or abuse in discretion in terming section 790-14 1 and i would argue that the language and it states that the parcel containing an mcd cannot be located within a thousand feet of a parcel containing a recreation center that primarily serves persons under 18 years of age. so i would find that the letter of determination was appropriately issued and would respectfully request that the board of appeals would find the same. i would note that the appellant has argued there is no way possible to walk between the two. they actually submitted walking directions in exhibit 3 of
1:52 am
their brief, approximately half a mile walking directions. i walked on several different mapping programs and they each have walking directions and each is a little different. and i would also argue while they may have entered into contract obligation, that letter of determination was on the public record since 2010. so that was out there for the public to be aware of and i don't know why they would have entered into a lease when i would assume that they would have full knowledge that location was a suitable location. i guess i would want to clarify that the suitable location, because we're not speaking to
1:53 am
whether or not it's an appropriate use for that location. we're not getting to that argument, that is a question for the planning department to make a determination on if this was not located within a thousand feet of the recreation center this. is located within a thousand feet of the recreation center and it's not a property that can have an mcd on it under the planning code. so i wanted to clarify that. we're not making a determination on the quality of use, but it has the restrictions because of the proximity to another property. with that i'm available to answer questions. thank you. >> mr. sanchez, if you could direct me to the provisions of 790.141 that require or indicate that the measurement must be done in a straight line? i would like to focus on
1:54 am
that language. >> so the language included on page 2, in the second paragraph, the language -- the parcel containing an mcd must not be located within a thousand feet. >> let me just -- >> i request can put it on the overhead. >> it's on the 2010 lod as well. is this correct.
1:55 am
for example, notification, we notify property owners within 300'. we notify and do a radius around the property in order to find that. so that is standard practice for any time the code says "within," that is how we have done it. there used to be similar restrictions on adult entertainment -- on massage facilities, it used to be a thousand-foot requirement on those as well. that is how we could calculate it. >> do you see no wiggle room on the term and definition of "parcel?" as the appellant would like us to sort of read into this language? >> i mean, i am sympathetic to that. to me it would be the other way around. if you had a very, very large parcel, a large park that had
1:56 am
maybe a small recreation facility. i mean, i think maybe there would be some cause for discretion in a case like that, but in a case like this, i don't feel that there is any wiggle room, honestly. i think we made an appropriate determination three times now, that this parcel is within a thousand feet of the other parcel of the merced heights playground and that contains a recreation facility that is primarily used by those under 18. and i believe almost the entire merced heights playground is within a thousand feet as well. >> i just want to be very clear. i think i heard the appellant said and if it's different from your measurement, if you were to take and subdivide the parcel on which the proposed mcd is located, if you were to subdivide it into subparcels or i don't know what the term is, but if each sort of leased
1:57 am
space were a stand-alone property with it's own sort of parcel site. if you were to measure from that point to the perimeter, the closest point of the area on which the playground was located, would that be a 1005 by your measure, by your straight line? >> we did not measure that. >> okay. >> from the leased space to the park, we did not measure that, because the code, i think is very clear saying "the parcel." >> so you wouldn't dispute the 1005-foot measurement? >> we haven't done a review of that, so i couldn't dispute it. >> okay >> is there any public comment on this item? seeing no public comment, mr. girardi, you have three minutes of rebuttal. >> thank you.
1:58 am
what i said i was at the merced playground and unable to walk on my own and find cambon. it's not -- it's not an easy path to walk, although some computer systems it's .5 miles to walk. i guess i'm going to lean on what you said is that the parcel containing the mcd, the parcel could be -- the leasehold, the space that we leased for this project is a parcel of land. and if you measure from the parcel of land where the mcd is to be located, and you measure to the merced heights playground, it's over a thousand feet. it would be unfair to tether the entire stripmall. it just doesn't make sense to attribute the space to the mcd for the entire parcel, the
1:59 am
parcel we leased is where the mcd will be and as a result we are outside lient you went the route of a dr request? >> that is correct. >> okay. i don't have any further questions for now. >> thank you. >> thank you. >> before we hear from the zoning administrator, i just want to see if there is anyone representing the subject property owner, who is also considered a party to this appeal? that person is not in the room. mr. sanchez, go ahead. >> thank you, good afternoon president hwang, members of the board and welcome commissioner honda and look forward to working with you. scott sanchez for the planning department, the subject roproperty is located with an nc s, a neighborhood-commercial shopping sister zoning district. there are very few of these.