1.

Call to Order and Roll Call – Roll call was taken and a quorum was certified.

COMMISSION MEMBERS PRESENTS:

Rodrigo Santos, President
Roy Guinnane, Commissioner
Alfonso Fillon, Commissioner
Criss Romero, Commissioner, excused

Bobbie Sue Hood, Vice-President
Noelle Hanrahan, Commissioner
Philip Ting, Commissioner

Ann Aherne, Commission Secretary

D.B.I. REPRESENTATIVES:

Amy Lee, Assistant Director
Ken Harrington, Special Assistant to the Director
Jim Hutchinson, Deputy Director
Sonya Harris, Secretary

President’s Announcements.

The President had no announcements.

Director’s Reports. [Acting Director Jim Hutchinson]
a.  Update on personnel staffing matters.

Acting Director Jim Hutchinson thanked William Wong who had stepped down from the position of Deputy Director of Permit Services after nine years of service.  Mr. Hutchinson said that with William’s departure Structural Engineer Tom Hui would be taking over as Acting Director of Permit Services.  Mr. Hutchinson thanked Mr. Hui for stepping in and taking over this important position.

Mr. Hutchinson reported that today at 2:00 p.m. the Department would be sending representatives to the Civil Service Commission to talk about the list of DBI Incompatible Activities.  Mr. Hutchinson said that the meet and confer process for the employees was going to take place after these initial meetings and said that the Department was going to make sure that this happened.  Mr. Hutchinson said that DBI’s list was the most comprehensive one that he saw in comparing it to other city departments. 

Mr. Hutchinson said that the Commission could not get involved in Personnel issues, but said that he thought that the issue of diversity could be discussed.  Mr. Hutchinson said that with this last round of budget cuts the Department was losing the only Hispanic Senior Manager, two wonderfully qualified women in the system, and the only African/American Budget and Finance Director as there are no more Senior African/American Senior Managers in the Department after this cut.  Mr. Hutchinson said that these cuts do not affect the budget by one cent, but people in City Hall thought it was better to go ahead and put the Personnel functions back at City Hall.   Mr. Hutchinson said that the Department had concerns and fears about not having Personnel representation in the Department.

Mr. Hutchinson said that an individual from the Department of City Planning was going to bump into the Budget and Finance position and said that he and Assistant Director Lee would be meeting with that person regarding DBI’s needs and expectations.  Mr. Hutchinson said that he and Ms. Lee went to the Mayor’s Budget Office last week and met with Ben Rosenfield and Nicole Simmons to try and save some of DBI’s positions, to talk to them about testing for DBI and to discuss relocating one of the DBI Managers.

President Santos said that he worked with William Wong for nine years and said that he was a dedicated City employee and said that he was pleased with the selection of Mr. Tom Hui who has worked for the Department for about eleven years.

Commissioner Guinnane asked if any other department in the City that has the same amount of employees as DBI lost their DHR Department.  Mr. Hutchinson said that there were some smaller departments that lost staff, but said he was trying to get a list of departments that are the same size as DBI to see if any maintained their staff.    Vice-President Hood said that she wanted the public to be aware that Taras Madison was one of the finest employees that DBI ever had.  Vice-President Hood said that Ms. Madison was one of the reasons the Department’s finances were managed effectively and said that it borders on being a tragedy that she is no longer with DBI. 

Mr. Joe O’Donoghue said that when this Department was created it became the most integrated Department in the entire City.  Mr. O’Donoghue said that there was a management structure that ruled former BBI that was all lily white, but that was changed with the creation of DBI to reflect the diversity of the City.  Mr. O’Donoghue stated that he found it ironic that the decision now made to create an exodus from this Department of minority people was made at the Board of Supervisors by lily white people.  Mr. O’Donoghue said that there was no outcry and stated that the Unions are missing in action.  Mr. O’Donoghue said that DBI is losing some of its top personnel and it is happening all over the City; he finds it absolutely disgraceful.  Mr. O’Donoghue said that this Department needs to speak out and under the new Acting Director he hoped it would be made known to DBI employees that politics at the Federal, State and local level are all local.  Mr. O’Donoghue said that fascism begins at the local level and dictatorships happen at the local level.  Mr. O’Donoghue said that DBI’s budget has been stolen and said that this is why he was in court; just three weeks ago the City Attorney’s Office told this Department that there could not be a Special Meeting scheduled under the rules and regulations and said they would go to court to prevent the Department from having a Special Meeting.  Mr. O’Donoghue said that there is a system where a few people are beginning to dictate and it is up to Commissions like this which is the most open, active Commission to start speaking out because there is no outcry from the Unions or anyone else.  Mr. O’Donoghue said that the downtown people want things to go back the way they were.  Mr. O’Donoghue said that he thinks it is outrageous that the Department has lost Taras and the Personnel Department.  Mr. O’Donoghue stated that Juvenile Hall or the Public Defender’s Office did not lose their Personnel Departments.  Mr. O’Donoghue said that this is the beginning of the dismantling of this Department.

Vice-President Hood said that Ms. Madison is African/American and that is almost incidental to her excellence, but this Commission was open to all minorities just on the basis of excellence and that makes the loss even sadder.  Acting Director Hutchinson said that Ms. Madison, contrary to what was said at the Budget Hearings, is losing her job and is leaving City employment. 

Ms. Cathy Abela introduced herself as the Senior Personnel Analyst at DBI and said that the Personnel staff wanted to go on record thanking everyone for looking into this matter for them.  Ms. Abela said that staff and supporters did appear at the Board of Supervisors, as late as 11:00 p.m. to advocate for their positions and to try to tell the Board of Supervisors how this was going to impact DBI very negatively.  Ms. Abela said that she had received layoff papers, but said that there had been some discussion that she will be transferred to DHR and will still be working with DBI.  Ms. Abela said that every argument made fell on deaf ears and was not heard.  Ms. Abela thanked the Commission for all their support and asked for the Commission’s continued pursuit.

Ms. Clair Filtcher said that the Planning Department has an organization called Friends of City Planning that does fund raising and provides visual aids, travel and other things that Planning cannot pay for themselves.  Ms. Filtcher asked if DBI had any inclination to have such an organization.  Vice-President Hood said that the Commission did not consider what was going on at Planning as a good model for DBI.  Ms. Filtcher said that she agreed, but said there were people in the community who would be willing to help out.

Commissioner Fillon said that it sounds like a good idea, but DBI is under a special scrutiny and it would not be good to be taking donations.

Public Comment:  The BIC will take public comment on matters within the Commission’s   jurisdiction that are not part of this agenda.

Ms. Sue Hestor said she passed out the Ethics Code amendment that was passed by the voters in November 2003.  Ms. Hestor said that she would like to raise the question of non-compliance by the Commissioners.  Ms. Hestor referred to Section 3224 which was restated since this Commission was adopted and is the most recent law on compensated advocacy.  Ms. Hestor stated that this prohibits people from doing business with the City if they are sitting on a Commission.  Ms. Hestor said that she was not sure which of the Commissioners were actively representing clients and taking out permits with DBI.  Ms. Hestor said the law says that one cannot serve two masters and cannot proceed as a compensated advocate which includes applying for a permit with DBI unless a waiver is obtained.  Ms. Hestor said that there is a process to get a waiver.  Ms. Hestor said that she went through all of the BIC calendars and all of the Ethics Commission calendars and said that she did not see the Commissioners taking this issue to the Ethics Commission to get a waiver.  Ms. Hestor said this took effect on July 4.  Ms. Hestor said that she questioned how those of the Commissioners who had not taken out a waiver could sit on the Commission.

Vice-President Hood said that she wanted to calendar this for a future item.  Vice-President Hood stated that the Commission had responses to Ms. Hestor, but said that it would be inappropriate according to the Brown Act to go into that at this time. 

Mr. O’Donoghue said that it was refreshing to see Ms. Hestor back at the meetings and said that he wanted to comment on the issue of compensated advocacy.  Mr. O’Donoghue said that the BIC has the Ethics disclosure and said that long ago he had requested that Sue Hestor, when she was representing clients undisclosed, that she disclose whom those clients were.  Mr. O’Donoghue said that the Ethics disclosure should include anyone who is representing a client before any commission for compensation, and that person should have to disclose who their clients are.  Mr. O’Donoghue said that Ms. Hestor appeared before the Planning Commission and the Board of Permit Appeals and would not reveal who it was that she was representing.  Mr. O’Donoghue said that he believed, though unproved, that it was Catellas to advocate on a faulty premise that the RBA was dislodging artists from empty lots by building live/work lots.  Mr. O’Donoghue said that there was not one single member of the RBA that evicted tenants and the live/works that went up were all built on abandoned sites.  Mr. O’Donoghue said that the Commission should ask Ms. Hestor who her client was and said that he hoped Ms. Hestor would advocate for the law to state that anyone who is being compensated should reveal who their clients are.

Ms. Debra Walker introduced herself as a former Commissioner.  President Santos said that the Commission had read Ms. Walker’s quotes in the paper.  Ms. Walker said that she has been called because she was on the BIC.  Ms. Walker said that there was a reference to dictatorships by Mr. O’Donoghue earlier and said that she would say that this is the reason that the Commission never see people at the meeting is because that is the feeling and the experience.  Ms. Walker said that in reading the minutes this is underlined because the only one coming is Mr. O’Donoghue.  Ms. Walker said that there was an opportunity to work together to make San Francisco better and said that her response to the report that came out was about things that everyone has been hearing, but is stuff that is pretty easily fixed.  Ms. Walker said that one of the ways that it can be fixed is by adhering to some of the Ethics Rules that have come about because the people of San Francisco have voted on them.  Ms. Walker said that to have someone come before the Commission to say that this is something that needs to be addressed and then to have that person attacked underlines the problem and the dysfunction of this Department.  Ms. Walker said that she hoped that this could be fixed and said that she enjoyed sitting on the Commission except for that.

Commissioner Fillon said that nobody on the Commission had attacked the speaker.  Ms. Walker said that she understood that.  Commissioner Fillon said that the Commission was open for anyone to come and speak before it and part of the reason for getting the meetings televised was so that people did not have to come to the meetings, more people could watch it and would be aware of what the Commission was doing.

Vice-President Hood said that she wanted to make a general comment and stated that no matter how well this Commission performs and how well the Department performs there are people in this City including the current Administration who trash the Commission without any evidence whatsoever just on the basis that it was created by Joe O’Donoghue and Randy Shaw.   Vice-President Hood said that she wished people would look at the performance of the Commission rather than politicizing it.  Ms. Walker said that people did point out the strengths of the Department and also criticized some aspects.  President Santos invited Ms. Walker to come to any future meetings.

Commissioner Fillon said that the item Ms. Walker was speaking about was on the last BIC agenda and said that he would have preferred that she would have come to the meeting rather than reading her comments in the Chronicle.

Discussion and possible action regarding the consideration of the procedures governing applications or requests for emergency demolition to the Director of the Department of Building Inspection and appeal of the Director’s decision to the Building Inspection Commission. [Commissioner Guinnane]

Commissioner Guinnane said that he requested this item because over the last couple of years there have been applications made to the Director of the Department and said that he had personally gone out and looked at some of these jobs.  Commissioner Guinnane said that in many cases the Department has concluded that yes, the house should come down, but with politics and everything else the Director is scared to sign an emergency order for that.  Commissioner Guinnane said that he had some ideas about how to move this along.  Commissioner Guinnane said that he would suggest:

1)       upon a written request for an emergency demolition to the Director, if the Director does not respond back with a written decision within fifteen days then it is automatically approved;

2)       if an order is requested and the Director denies it then within fifteen days an appeal can be made to the BIC, which would take the burden off of the Director;

3)       if the BIC so desires it could farm the appeal out to a sub-committee of three individuals of the BIC.

Commissioner Guinnane said that he and President Santos have gone out and looked at several properties and would encourage the other Commissioners to do the same.

Commissioner Hanrahan asked what the current policy was.  Commissioner Guinnane said that he did not think that there was any appeal in place right now if the Director gives a letter of denial.

Vice-President Hood asked if the Commission could get something in writing on this as it is a complicated item.  Vice-President Hood said that she wanted a written analysis to study in depth as this is a very important issue.  Vice-President Hood said that she would like to take public comment, but said that she would like to agendize this for a future meeting when there are written reports from staff as this has been such a controversial issue.

Commissioner Guinnane said that his proposal was not like unlawful demolition as these people are not trying to deceive the Department; some of the buildings are completely burned and gutted in the inside and should come down, yet the Department will not give an order to take it down.  Commissioner Guinnane said that he felt there was liability to the City with these buildings.

Commissioner Hanrahan said that she would like more detail about this issue and stated that the Commission needed to vest its support and trust in DBI and the Inspectors. 

Acting Director Hutchinson said that the issue being discussed is about buildings that have been damaged clearly by an act of God; fire damaged buildings, buildings that have not been maintained and have become a hazard to the neighborhoods.  Mr. Hutchinson said that today with a fire damaged building, as long as it was not falling out into the street, the Department would have the owner go through the process of getting a demolition permit and wait until that is issued before the building could be torn down.  Mr. Hutchinson said that the problem with that is that the building could fail within that time period.  Mr. Hutchinson said that there are unwritten rules that the Department follows and said he was asked by Commissioner Guinnane if there was a fairer way to do this.  Mr. Hutchinson said that the process would become more transparent.

Vice-President Hood said that this might require an Administrative Bulletin and said that this has been an excellent process.  Vice-President Hood said that she would suggest that the Department draft an Administrative Bulletin and have it reviewed by the Code Advisory Committee so the Commission could deal with this openly, fairly and quickly.

Commissioner Fillon asked if Mr. Hutchinson in his report could pay some special attention as to how this policy would interact with the existing demolition policy particularly from the Planning Department.

Secretary Aherne suggested that the Commission check with the City Attorney’s Office because the BIC has an appeal process that deals with any decision made by the Director, DPW or the Water Department.  Vice-President Hood said that would not be appropriate.

President Santos said that the normal procedure that is now in place takes a considerable amount of time and would probably take one year.  President Santos said that a decision by the Planning Commission could be appealable to the Board of Permit Appeals and then five votes are required to overturn the decision of the Planning Commission so the process does take a tremendous amount of time. 

Acting Director Hutchinson referred to a building on Lombard Street that was fire damaged several years ago that the Department gets called about all the time because even though the building is boarded up people without shelter go in and it is an incredible hazard.  Mr. Hutchinson said that on many of these buildings the Fire Department has gone on record to say their personnel will only respond from the outside because they are in danger of going through the roof.  Commissioner Guinnane asked that since there is a denial in place on Lombard Street what would happen if something happens out there and someone is hurt; would the liability fall on the owner or the City.  Mr. Hutchinson said that this is what concerns the Department and said that the Department would be happy to come up with a better process to ensure safety and allow people to go about their business with reconstruction.  Mr. Hutchinson said he would like to say that this is a small amount of buildings.

Ms. Alyce Barkley said that in July she had communicated with the Commission regarding this building.  Ms. Barkley described the building and said that the structural engineers have said that there is absolutely no structural integrity in this building.  Ms. Barkley said that her client could not get insurance.  Ms. Barkley said that on one building on Fourth Street where it took her months to get an emergency order, when she did the police had to come in to remove homeless people who had moved in there.  Ms. Barkley said that ten minutes after the homeless were removed from the building it collapsed and these are the kinds of buildings she is talking about.  Ms. Barkley stated that she did not want to see this process take another year; it should happen immediately. Ms. Barkley said that she had an appeal before the Commission regarding the Lombard Street property.  Vice-President Hood said that she thought that this process might be able to be completed within a month because it has been discussed frequently.  Vice-President Hood said that the Planning issues should not stand in the way of the health and safety issues and asked that there be a draft done quickly. 

Ms. Debra Walker said that she appreciated Commissioner Hood’s and Hanrahan’s comments to make sure that there is public input into this issue.  Ms. Walker said that she and Commissioner Hood had worked for a long time on this issue and asked what had happened to that process.  Vice-President Hood said that there were people present in the audience that shot it down after there was agreement among the principle people.  Ms. Walker said that one of the things that is a concern to the public is the planning issues and said that she did not see anything where Planning was even included.  Ms. Walker said that she understood that an emergency order could be done without having the drawing in place for reconstruction and that is the planning concern of a lot of people.  Ms. Walker said that a lot of time the value of land when it is empty goes up because it may have been rent control units or whatever.  Ms. Walker said that the tenant community, Landmarks, Planning and certainly the public need to be considered in this.  Vice-President Hood said that there could be all kinds of things written into this that would protect tenants, the public and Planning goals, but gets rid of this real liability problem.  Ms. Walker said that she would agree with Commissioner Hanrahan that the Building Inspectors are professional and committed folks doing incredible jobs and said that she understood that the process is spread out and frustrating. 

Ms. Daniella Kirschenbaum said that it was probably two years ago that she was in front of the Commission regarding unlawful demolitions which has been an ongoing problem across the City.  Ms. Kirschenbaum said that buildings have been coming down or exist with just the front facades.  Ms. Kirschenbaum said that she hoped that since she had last been present that the problem would have been solved.  Ms. Kirschenbaum stated that with enough creativity just about any building could be declared unsafe.  Ms. Kirschenbaum said that there were too many people who did not trust the process or the decision making.  Ms. Kirschenbaum said that she would be willing to work with all people to establish trust between the Commission and the public.

Mr. Joe Butler said that he was an Architect in the City and said that he wanted to speak about the unintended consequences of what the Commission might do.  Mr. Butler said that he appreciated the concern about public safety, but said that in this town acts of God also include accelerants.  Mr. Butler said that he thought that this would encourage building owners to empty buildings and leave them there to rot, or for people to burn their building or remove structural elements until the buildings are less than stable.  Mr. Butler asked that the Commission not act today.  Vice-President Hood said she has heard that right now the ambiguity of this situation has encouraged people to use accelerants in certain conditions and said that any time the Commission heard of such an instance it has worked with criminal investigation to have that matter pursued.  Vice-President Hood said that the Commission has tried to get rid of the ambiguity and said that the unholy alliance is tying Planning goals with health/safety issues. 

Mr. Butler referred to the Belli building as an example of an owner letting a building get run down and said that it should be retained because it is a historic building.   Vice-President Hood said that historic buildings were dealt with in a much different way and were not part of the demolition process.

Ms. Sue Hestor said that she thought that Vice-President Hood’s suggestion of changing the legal status of buildings was a good one, but to do that the City Attorney’s Office would have to be involved.  Ms. Hestor said that she wanted to state for the record that she was pro-bono here and never represented Catellas; she fought Catellas.  Ms. Hestor said that Planning had adopted new demolition rules earlier this year and said that she thought that it could not be avoided to have Planning in the room when this is being discussed and the Landmarks Rule.  Ms. Hestor said that there was no notice to Planning, but said that this does need to happen.  Ms. Hestor said that there is a lot of cynicism about emergency orders because sometimes they have been manipulated. 

Mr. Joe O’Donoghue of the Residential Builders said that the Commission was talking about a speedy process because right now there is a “defacto” order on disallowing any demolition under the emergency order.  Mr. O’Donoghue said that several months ago he warned the Commission that there was an investigation going on regarding wrongs happening within DBI staff due to undue influence by outside people that could care less about what would come down legitimately or not.  Mr. O’Donoghue said that Commissioners Guinnane and Santos brought several properties before the Commission where this was happening and now staff is refusing to act on legitimate cases.  Mr. O’Donoghue said that regarding the statement about restoring the trust between the public and the Commission it is the Chronicle that is the one that issued the lies about the so called abuses within this Department which is now putting the City at risk for liability.  Mr. O’Donoghue said that there were very few emergency demolition orders issued and now there are none.  Mr. O’Donoghue said that after the Controller’s Audit the public gave DBI an 85% approval rating for the Department and the Commission.

Vice-President Hood said that the BIC does not want to get into Planning issues and the BIC should divorce themselves from Planning and deal only with the health, safety and welfare issues.

APPEALS PURSUANT TO SECTION D.3750.4 OF THE CITY CHARTER
CONSOLIDATED APPEALS – 80 NATOMA STREET
Appeal by Myers Natoma Venture, LLC, et al Represented by Steefel, Levitt & Weiss
Appeal by TRANSDEF Represented by Luce, Forward, Hamilton & Scripps
 

a.


b.
c.

Report, discussion and possible action regarding the Building Inspection Commission’s jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal.
Presentation by parties including witnesses.
Deliberation and possible decision by the Building Inspection Commission.  

Assistant Director Lee gave an overview of the history on this project.  Ms. Lee said that on June 7 of this year TRANSDEF, an advocacy group, spoke on 80 Natoma during the review of communication items on the agenda.  Ms. Lee said that in view of allegations and public comment the Department decided to issue a Stop Work Order for a two week period to address all of the issues raised as well as other issues that Department staff discovered.  Ms. Lee stated that at that time the Director reviewed all of the documents and conferred with the City Attorney’s Office; the Director had staff further investigate the reports, findings and permit history.  Ms. Lee said based on all of the evidence the Director determined that the 1998 and 1999 permits were null and void due to inactivity and sent a request to the Planning Department regarding the 2004 site permit.  Ms. Lee stated that the Director continued to uphold the Stop Work Order to allow additional time to determine the validity of the site permit of 2004.  Ms. Lee said that Myers Development was given permission to do some additional borings for geotechnical analysis and the Director added Professor Juan Estana from U.C. Berkeley to the Peer Review Panel.  Ms. Lee said that there were two appeals pending and stated those appeals.  Ms. Lee said that the BIC does have jurisdiction over these appeals as cited in San Francisco Charter Section D3.750-4 and Administrative Code 77.3.  Ms. Lee said that Prop H and the appeals should be discussed in conjunction with the City Attorney after the appeals have been heard.  Ms. Lee said that Myers Development did make a motion to the Superior Court to bypass this Commission and have this matter decided in court.  Ms. Lee said the court denied that motion.  President Santos asked what role Tom Hui would be taking in this hearing.  Acting Director Hutchinson said that Mr. Hui was present to answer any questions regarding the process within the Department of Building Inspection and any structural issues that he might be familiar with as a Structural Engineer.

President Santos clarified that there were two issues before the Commission, the validity of the permit in terms of timing, commencement of work, potential expiration of permits and revisions to site permits; the second item which is the technical item and the dispute regarding the presentation that the maximum expected settlement for fifty-one stories is going to be 2 ½” to 3” versus the opinion of other professionals that it is going to be well beyond that.  Acting Director Hutchinson said that there might be a third issue because he believed that there was a request for continuance.  Mr. Hutchinson said that the Department did not grant a continuance.  Ms. Lee said that the Commission could grant a continuance.  Ms. Lee said that the Commission was looking at the decisions made by the Director failing to rule that the 2004 site permit is null and void and also the challenges to the BIC’s jurisdiction and to review the Director’s decision. Ms. Lee said that the Commission could discuss the parties request for a continuance, if there was one.

Vice-President Hood said that she would like to get a copy of the Judge’s ruling saying that the Commission did have jurisdiction over this appeal.  Ms. Lee said that Mr. Ken Harrington was more familiar with the issues surrounding 80 Natoma, but stated that he had been asked by the City Attorney’s Office not to attend due to pending litigation.  Vice-President Hood said that she was concerned that Mr. Harrington was not present because it implies that if a person does not like what someone in the Department has done all they have to do is sue them personally and they will be asked not to come to the Commission hearings. 

President Santos asked the City Attorney if it was proper to discuss the request for continuance.  Deputy City Attorney Catharine Barnes said that was appropriate. 

Mr. Jack Myers introduced himself as Chairman and Chief Executive Officer of Myers Development Company and the owner and developer of the 80 Natoma project through Myers, Natoma Ventures LLC which is a party to this whole controversy.  Mr. Myers said that last week he made a request to the Secretary of the Commission to consider a continuance of this particular matter given that he has been frustrated with his attempts to come together with the engineering folks at DBI and the Peer Review Panel to have a technical discussion.  Mr. Myers said that he was comprehensively ready to proceed today, but thought that it would be helpful if Myers Development had time with the Department and the technical people to ascertain to see if there were significant issues having to do with life and safety that have been raised by third parties.  Mr. Myers said that his request for continuance is to have better communication and better understanding of some of the issues that are in front of the Commission.

President Santos said that the validity of the permits would have to be decided before the technical issues could be discussed.  Vice-President Hood said that she did not think that what Mr. Myers had just said would be a basis for a continuance, but said that she would like to hear if there is any reason for continuance and any public comment. 

Mr. Myers said that he was prepared to present on both the technical issues and the geotechnical issues as well as the validity of the permits should the Commission elect to go ahead with the appeals.  Mr. Hutchinson said that it would be up to the Commission to decide if a continuance was in order.  Commissioner Guinnane said that he would have no problem giving a continuance, but said that the first issue he wanted to hear was the validity of the permits because otherwise the other issues are moot.  Mr. Myers said that a week or two at the most would be more than enough time to discuss what they needed to inside of DBI. 

President Santos asked if anyone from the other side would like to comment on a continuance.

Ms. Alyce Barkley said that she was representing TRANSDEF the other appellant.  Ms. Barkley said she thought that it was appropriate to continue this matter so that they could get a copy of the BIC rules for an appeal.  Ms. Barkley said that there was a question about the Director having ruled about the validity of the 2004 permit.  Ms. Barkley said that she has never gotten an answer to that question so it would be appropriate for the Commission to ask for that.  Ms. Barkley said that the Commission had also not given any briefing to either party and said that she did not object to a continuance.

Vice-President Hood asked if someone from Steefel, Leavitt and Weiss could report on what was the outcome of the August 12^th hearing before the Superior Court because typically matters which are appealed before a Commission are not already matters that are being appealed in the courts.

Mr. Brian Hafter of Steefel, Leavitt and Weiss said that he was one of the counselors representing Myers Development Company.  Mr. Hafter said that there is a Civil lawsuit on behalf of Myers against DBI, the City and County of San Francisco and Ken Harrington.  Mr. Hafter stated that the relief that is being sought in that Civil lawsuit is that decisions made by Director Chiu were inappropriate because they were denied due process and because on the merits of those decisions they were simply incorrect and as a matter of law.  Mr. Hafter said that was bought to the attention of the courts through the filing of a Petition of Writ of Administrative Mandate and through a Civil complaint which also seeks additional damages.  Mr. Hafter said that in connection with the court action they filed they filed a separate motion for a stay of Director Chiu’s decisions which is a form of extraordinary relief which is allowed under the California Code of Civil procedures where one is asking that until the court has the time to reach the final merits of whether Mr. Chiu’s decisions were correct or incorrect the Court should issue a stay of his suspensions.  Mr. Hafter said that the motion was based solely on the grounds that Director Chiu had violated Myers due process rights because Director Chiu had issued three different suspension orders without a hearing which is required by law.  Vice-President Hood asked if that was still before the courts.  Mr. Hafter said that the court denied their motion without prejudice and without any findings by the court order.  Mr. Hafter said that the court did not make a ruling that the BIC had jurisdiction over this appeal and in the brief that Myers submitted on August 9^th they laid out a number of reasons why the BIC does not have jurisdiction to be hearing either of the appeals before the court. 

Vice-President Hood said that she would like as a matter of procedure to go back to Item #6a to discuss that before taking any further public testimony on the continuance.  Vice-President Hood said that she would like to have the Commission vote on this issue of jurisdiction.  Commissioner Guinnane asked if Mr. Myers was still claiming that the BIC does not have jurisdiction over this appeal.  Mr. Hafter said that speaking on behalf of Myers they were not submitting to the jurisdiction of the BIC and said that there were many reasons for that.  Mr. Hafter said that he still felt that the Commission could grant a continuance especially since Ms. Barkley said that she has no objections to a continuance.  Vice-President Hood said that she objected to the matter of continuance until the matter of jurisdiction, item #6a, was voted on. 

Commissioner Guinnane made a motion, seconded by Commissioner Santos, that the hearing on the appeals be continued for two weeks.

Vice-President Hood asked the Deputy City Attorney if the Commission could grant a continuance.  Deputy City Attorney Barnes said that the Commission could allow for a continuance under BIC Rule 7.10, the Commission may grant a continuance for good cause shown at the time of the hearing and good cause would be that the parties are trying to work out some of the matters. 

President Santos agreed to take public comment on the motion for continuance.

Ms. Alyce Barkley said that she thought that it was critical that this Commission decide on the jurisdiction because otherwise why continue it.  Ms. Barkley said that it was the decision of the City Attorney’s Office that this Commission does have jurisdiction and said that it would be important to have the Deputy City Attorney that is handling this case present at the next meeting.  Ms. Barkley said that she was concerned with all of the smoke and mirrors that were being changed and suggested to continue the appeal.

Ms. Lee said that she had just returned from the City Attorney’s Office and since the Judge has not officially signed the order no copy is available.  Ms. Lee stated that she had asked Andrew Schwartz who has been the Attorney on this matter to speak to the Commission and he would be appearing shortly.

Mr. Joe O’Donoghue of the Residential Builders said that from the public’s perspective and being the ones who are paying for all of the high priced attorneys present including the City Attorney’s Office, he wanted to ask who was paying the bill on behalf of the Department for this extensive litigation.  Mr. O’Donoghue said that there is a question of due process and said that there were rumors all over this City about the antics or the non-antics of the Commission and influence of the builders in sandbagging Myers Construction and issues of favoritism.  Mr. O’Donoghue said that the builders, including himself, have absolutely no interest in this case and said that this should not even be before the Commission as it is an issue of policy.  Mr. O’Donoghue said that this money should come from the General Fund.  Mr. O’Donoghue said that elements of fairness demand that this be continued for two weeks.  Mr. O’Donoghue said that this should be before the Mayor’s Office and the Board of Supervisors, but two weeks should be granted so things could be clarified.  Mr. O’Donoghue said that he was looking at the amount of money being spent and taking away staff from DBI and delaying permits. 

Commissioner Guinnane said that he wanted Mr. O’Donoghue and Mr. Myers to be aware that in talking about sandbagging if he was involved in any cover up or any sandbagging he would get off of this Commission right now because when he was building there was no Commission in place and there was a lot of sandbagging going on in the Building Department.  Commissioner Guinnane said that he would not tolerate it and would hope that the rest of the Commissioners are not involved in any kind of sandbagging.

Mr. O’Donoghue said that was why he wanted the element of fairness brought out here to grant the very simple request of a two-week continuance. 

At 11:10 a.m. the Commission took a break.

The Commission reconvened at 11:22 a.m.

President Santos announced that public comment had been closed.  Commissioner Guinnane asked that Andrew Schwartz of the City Attorney’s Office speak on the issue. 

Mr. Schwartz said that he represented the City in the Civil Rights and Writ of Mandate litigation filed by Myers Development Company and Myers Natoma.  Mr. Schwartz said that there was a long motion proceeding heard by Judge Kitische on Thursday the 12^th.  Mr. Schwartz stated that he could answer any questions from the Commission about the action that the court took that relates to the jurisdiction of the Building Inspection Commission.  Commissioner Guinnane said that he did not see anywhere on the ruling that the court said that the BIC had jurisdiction.  Mr. Schwartz said that the petitioners, Myers Development, argued that the court should allow them to continue work because the BIC did not have jurisdiction to hear this appeal.  Mr. Schwartz said that the court implicitly rejected that argument in denying their motion.  Mr. Schwartz said that he argued in the papers to the court that under Administrative Code Section 77.3 that the Building Inspection Commission has the authority to hear appeals of the decisions of the Directors in cases involving a conditional use permit.  Mr. Schwartz said that he could tell the Commission what he argued in the case and what he thought the court held, but said he could not advise the Commission.  Mr. Schwartz stated that he thought that the court held that in denying the motion without prejudice meaning that the court wanted this appeal heard in an administrative, appellate proceeding, the Building Inspection Commission and the court rejected the argument that the Building Inspection Commission had no jurisdiction. 

Commissioner Ting said that the Commission did not have anything from the City otherwise, that the Commission does not have jurisdiction.

Mr. Myers said that the jurisdiction issue is not any kind of an attack on the Commission and said he felt very strongly about the Commission as a formal agency of government, but this is simply a matter that comes out of frustration of not being able to build the building that he feels they are entitled to build.  Mr. Myers said that he had gotten mixed messages and said that when this issue came up initially he was sent to the Board of Appeals and the Board of Appeals said that they had no jurisdiction.  Mr. Myers stated that when this came up again with another referral from DBI to the BIC he was concerned.  Mr. Myers said that he was trying to build a building in this City that when he bought this property he thought he was entitled to build.

Mr. David Schonbrunn said he was with TRANSDEF who had retained Alyce Barkley of Luce Forward to represent them.  Mr. Schonbrunn said that in court on Thursday Myers attorney tried to convince the court that the members of the BIC’s minds were already made up and that the BIC was ready to vote against the project.

Ms. Alyce Barkley suggested the BIC ask the City Attorney representing it to state whether or not the BIC had jurisdiction over this hearing.  Vice-President Hood said that she wanted to address that question to Catharine Barnes.  Ms. Barnes said that yes, she would advise that the BIC had jurisdiction over this matter.

Vice-President Hood said that she was sorry that the Commission did not address 6a and said that she agreed with the City Attorney that this Commission does have jurisdiction and said she thought it was relevant to the motion because it would make the next meeting more focused.  Vice-President Hood said that she thought that this was a very complicated issue and involved the decisions of the Director.  Vice-President Hood said that she wanted to vote on item 6a today and not continue that item.  Vice-President Hood asked Commissioner Fillon and Guinnane to withdraw their motion until this was settled.   Commissioner Fillon said that both sides are asking for a continuance so it is a cut and dry decision and said that he thought that jurisdiction was a moot point.

President Santos said that all parties would have to deliver information to the BIC Secretary for any future meeting in a timely manner.  Secretary Aherne said that she was still receiving information for today’s meeting on Friday after 5:00 p.m. and there was no way to get that information to the Commissioners at that time.   Commissioner Guinnane said that the Department would have to rule on the 2004 permit and asked if that permit was upheld.  Assistant Director Lee said that no ruling had been made.  Commissioner Guinnane said that the Department should make a decision within a week and then Mr. Myers would have time to submit a brief saying why he thought the permit should be upheld or denied.  Ms. Lee said that by the 23^rd the Department would make a decision and give notice to all parties and stated that this might have to be done by Acting Director Hutchinson.  Commissioner Guinnane said that Mr. Myers should then be given two weeks to respond and stated that he would urge the Commissioners to visit the site.  It was decided to have a Special Meeting on August 30, 2004.  Vice-President Hood said that she would like the deadline for any materials submitted to be one week before the meeting.

Vice-President Hood said that she respectfully disagreed with Commissioner Fillon about continuing the jurisdiction issue.  Vice-President Hood said that she would oppose the motion to continue this item unless the Commission rules today on the jurisdictional issue. Commissioner Guinnane said that he would not change his motion.   Acting Director Hutchinson said that he would guarantee a decision on the 2004 permit by Friday at noon.  Secretary Aherne said that the following Tuesday would be the last possible date for anyone to submit any paperwork regarding these appeals.   

Commissioner Guinnane restated his motion to grant the continuance on all three items, a, b and c to August 30, 2004.  Commissioner Fillon said that he would once again second the motion.

President Santos                          Yes
Vice-President Hood                    Yes
Commissioner Fillon                     Yes
Commissioner Guinnane              Yes
Commissioner Hanrahan              Yes
Commissioner Ting                         Yes

The motion carried unanimously.

Commissioner Guinnane made a motion, seconded by President Santos, that the minutes be approved.  The motion carried unanimously.

Commissioner Guinnane made a motion, seconded by President Santos, that the minutes be approved.  The motion carried unanimously.

Assistant Director Lee said that she wanted to speak on this item and also item #’s 7a and 7b which are interchangeable because at the last meeting Commissioner Romero mentioned that he had heard information contrary to what staff had provided or contrary to what the truth was.  Ms. Lee said that regarding the Incompatible Activities for City Departments she wanted to clarify that the formal meet and confer process would take place after review of the statements by the Ethics Commission.  Ms. Lee said that the hearing was going to be today at 2:00 p.m. for general public comment.

President Santos said that there was a Special Meeting set for August 30^th.  Commissioner Guinnane asked for a Special Meeting for Monday August 23^rd as he had eight items that he wanted the Commission to move forward on.  Vice-President Hood asked what the items were. 

Commissioner Ting said that he missed the Special Meeting the previous week because he has a day job and it is hard for him to schedule these special meetings.  Commissioner Ting said that there should be some criteria for calling a Special Meeting and said that he would be in favor of going for a longer regular meeting to clear up business, but asked that the Commission stay on a regular schedule.    Commissioner Fillon said that the public is used to the Commission having the meetings on the first and third Monday of each month.  Commissioner Guinnane said that his items were not emergency issues. 

Vice-President Hood said that she would like to get a draft for the emergency demolitions and said that she did not think that there should be two years of hearings for this issue. 

President Santos asked Secretary Aherne to check into the availability of a room and to check with each of the Commissioners regarding a Special Meeting for the 23^rd.  Secretary Aherne said that she would get back to the Commissioners.

Mr. O’Donoghue said that Commissioner Ting had an excellent point about there being a lot of meetings.  Mr. O’Donoghue said that the reason was 80 Natoma and said that 80 Natoma was cancelled and then there had to be a Special Meeting last week to deal with the Nothenberg report. Mr. O’Donoghue said that this is why the calendar is falling behind, but said that there were two major matters of concern to his industry, the budget and the fact that the Supervisors were told that DBI’s Personnel Department was going to go over to Human Resources and that is not now happening.  Mr. O’Donoghue said that now there is the dismantling and the layoff of very good solid public employees.  Mr. O’Donoghue said that with the budget problem now there are going to be more delays in the permit processing.  Mr. O’Donoghue said that Acting Director Hutchinson was in contact with some of the larger developers downtown to inform them, including groups out in the districts that the delays are going to increase and the record of the Department is going to get worse.  Mr. O’Donoghue said that after these items were taken care of then the Commission could take a break.

Public Comment:  The BIC will take public comment on matters within the Commission’s jurisdiction that are not part of this agenda.

Mr. Joe O’Donoghue said that the Chronicle reported yesterday extensively on some of the shenanigans of Julie Lee and stated that he was not using that word to be derogatory, but that is the impression that was created.  Mr. O’Donoghue said that it was interesting that the Chronicle bypassed the very proactive role that this Commission played in uprooting some of the alleged malfeasance that appeared to be going on.  Mr. O’Donoghue said that the Chronicle will never give this Department the credit for positive actions that it has done and created.  Mr. O’Donoghue stated that the article alluded that Julie Lee had gotten some permits expedited through this process and said that the imputation of that was that this Department was now showing favoritism to Julie Lee then fortifying or validating the original allegations of the Chronicle that malfeasance was ongoing at DBI.  Mr. O’Donoghue said that what the article failed to note was that this Department last year had begun an investigation of the permits that Julie Lee and James Li had in fact themselves engaged in.  Mr. O’Donoghue said that the BIC had already uprooted the problem and if the Chronicle had done its proper objective reporting it would have followed up on the BIC’s leads and the story regarding Julie Lee’s manipulations would not have taken as long to uncover as they now have.  Mr. O’Donoghue said that he wanted to say for the record that the investigation of this Department happened over a year ago and involved the parties that he had already stated and this Department and the Commission particularly showed that it was on top of enforcement which is one of the obligations that DBI and the BIC have to the public.  Mr. O’Donoghue said that the Commission is qualified, objective and not made up of political hacks, even though occasionally there have been some political hacks as appointees on the Commission and may have in the future.  Mr. O’Donoghue said that so far the whole four/three distribution has worked out very well at least on behalf of the building industry.  Mr. O’Donoghue said that he wanted to conclude by saying that one African/American lady, a parent of one, after sixteen years with this system got notification that she was now being terminated and laid off; she was being bumped by a twenty year old employee who had worked in the Mayor’s Office who has been on Workman’s Comp for the last three years and is still on Workman’s Comp.  Mr. O’Donoghue said this was the kind of human misery that was going on and somehow this has to be stopped before it happens at DBI.  Mr. O’Donoghue stated that the Unions are missing in action.

Assistant Director Lee said that regarding all of the articles written in the papers regarding Julie Lee she wanted to clarify that it said in the papers that DBI had given the San Francisco Neighbors Resource Center $1,000 for a grant.  Ms. Lee said that this was a request from the Mayor’s Office to all City Departments to provide grant monies for an energy fair and said that most departments did do so. 

Vice-President Hood said that this Commission noticed a pattern some years ago that an Engineer, James Li, was having problems with permits over and over again.  Vice-President Hood said that this was the person who is involved in the kickbacks to Kevin Shelley that were discussed in the San Francisco Chronicle.  Vice-President Hood said that this was another example of where the Chronicle is out to get this Department because DBI was investigating James Li far before the Chronicle was and had developed a track record of what was going on. 

SUMMARY OF REQUESTS BY COMMISSIONERS

Vice President Hood wanted to calendar the item of how the B.I.C. Commissioners are in compliance with the Ethics Code Amendment.     – Vice President Hood

Page 4

Commissioner Guinnane wanted to suggest setting up a new policy for Emergency Demolitions.  – Commissioner Guinnane

Page 5

Vice President Hood said that she would like to get a draft for the emergency demolitions.  Vice President Hood also suggested that the Department draft an Administrative Bulletin and have it reviewed by the Code Advisory Committee.  – Vice President Hood

Pages 5, 6, & 16