BEFORE THE BOARD OF APPEALS OF THE CITY AND COUNTY OF SAN FRANCISCO Appeal Nos.

13-095, 13-096, 13-097 and 13-098 FINDINGS & CONDITIONS On December 11, 2013 and January 15, 2014, these Appeals, filed by The Marsh and Alicia Gamez Appellants of the issuance of Demolition Permit Application No. 2010/12/27/7436 and Building Permit Application No. 2010/12/27/7437S (the Permits), came before duly noticed hearings of the Board of Appeals. The Permits are for the demolition of a one-story restaurant building with 2,000 square feet of ground floor area and the construction of a five-story-over-basement mixed use building containing twelve dwelling units and a ground floor commercial use with 3,000 square feet of ground floor area, respectively, located at 1050-1058 Valencia Street at the corner of Hill Street (the Project). On September 30, 2010 the Planning Commission approved a final mitigated negative declaration (FMND) for the Project by Motion No. 18185. On September 6, 2012, the Planning Commission took discretionary review and approved the Project with conditions. On November 5, 2013 the Board of Supervisors upheld the FMND on appeal.This Board has reviewed and considered the FMND and record as a whole, and hereby adopts as its own and incorporates by reference into these Findings and Conditions, as though fully set forth herein, the FMND. This Board finds, based on the record as a whole, that there are no substantial project changes, no substantial changes in project circumstances, and no new information of substantial importance that would change the conclusions set forth in the FMND. Having heard all the public testimony and reviewed all the documents in the record on these matters (the Record), the Board of Appeals hereby grants the Appeals and issues the Permits based on the following Findings and subject to the following Conditions: 1. According to the Record, on or about December 29, 2010, Stephen Antonaros filed for Building Permit Application Nos. 2010/12/27/7436 and 2010/12/27/7437S with the San Francisco Department of Building Inspection (DBI) and San Francisco Planning Department proposing demolition of an existing one-story commercial building and construction of a five-story mixed-use building within the Valencia Street Neighborhood Commercial Transit Zoning District and a 55-X Height and Bulk District. The proposed new construction would be 55 feet in height to the roof line with an additional 3 feet in height at the parapet located at the Hill Street corner of the property. On September 6, 2012, the San Francisco Planning Commission took Discretionary Review of the Project and approved the Permit Applications with conditions. The permits were issued on September 18, 2013 and these Appeals were timely filed on August 1, 2013. 2. According to the Record, appellant The Marsh is a nonprofit theatrical and educational organization that sponsors nearly 400 shows annually and hosts daily classes for youth and adults at its San Francisco location. Since 1992, The Marsh has been located at 1062 Valencia Street, immediately adjacent to the Project; it purchased that property in 1996. The Marsh operates seven days a week between the hours of 9 a.m. and 11 p.m. Appellant Alicia Gamez is a resident of the neighborhood where the Project is located. 1.

3. The Board finds clear evidence in the Record that The Marsh serves an important cultural and educational purpose in San Francisco. It is an organization that has garnered national critical acclaim and received many prestigious awards. It provides vital community services for youth, including at-risk youth, and is nationally recognized for the unique forum it provides for the development of new theatrical presentations. 4. The Board finds extensive evidence in the Record that Appellants and members of the public, are greatly concerned about the impact of the noise that would emanate from the Project, both during construction and from residential and commercial uses after the Project is complete, including from the proposed second floor roof deck. The Marsh and members of the public expressed specific concerns about the disruption of theatrical performances and classes from these noise sources, as well as the impact this disruption would have on The Marshs continued artistic and financial feasibility as a provider of classes, workshops, after school theater programs and performances. 5. The Record reflects additional concerns held by The Marsh and members of the public that prospective owners and tenants of the Project may object to sounds typical of an entertainment use that may emanate from The Marsh and that the Project could be incompatible with existing operations of The Marsh and could jeopardize its continued operation. 6. The Board deems this evidence credible and finds that the intended commercial and residential uses of the Project, including a restaurant use at the ground floor, the density of the residential use, and the residential use of decks abutting The Marsh, may generate noise that could disrupt performances and classes at The Marsh. 7. The Board further finds credible evidence in the Record that Appellants and members of the public, many of whom live in the area of the Project, are greatly concerned about the Projects impact upon the residential character of the neighborhood, including adjacent Hill Street, the Liberty-Hill Historic District, and the mixed residential and commercial character of Valencia Street. 8. The Board notes that the Project would have 85 feet of frontage along Hill Street and 39 feet of frontage along Valencia Street. The Board further notes evidence in the Record that the block of Hill Street on which the Project would sit and the surrounding blocks of Valencia Street are predominately populated by two- and three-story buildings, including single family homes, some duplexes and a few small apartment buildings. The Board finds that in contrast, as a five-story structure with twelve (12) residential units, the Project would be two or three stories taller than the surrounding buildings and would have a density significantly greater than surrounding residences. The Board finds these disparities to be incompatible with the scale and character of the neighborhood. 9. These findings are consistent with the legislative intent expressed in the following City Codes and Policies: a. San Francisco Planning Code: i. Master Plan Priority Policy #2: That existing housing and neighborhood character be conserved and protected in order to preserve the cultural and economic diversity of our neighborhoods. San Francisco Planning Code (Code) Sec. 101.1(b)(2).

2.

ii. Prior to issuing a permit for any project or adopting any legislation which requires an initial study under the California Environmental Quality Act, and prior to issuing a permit for any demolition, conversion or change of use, and prior to taking any action which requires a finding of consistency with the Master Plan, the City shall find that the proposed project or legislation is consistent with the Priority Policies established above. For any such permit issued or legislation adopted after January 1, 1988 the City shall also find that the project is consistent with the City's Master Plan. Code Sec. 101.1(e). b. San Francisco General Plan: i. Housing Element Policy 11.1: Promote the construction and rehabilitation of well-designed housing that emphasizes beauty, flexibility, and innovative design, and respects existing neighborhood character. ii. Housing Element Policy 11.5: Ensure densities in established residential areas promote compatibility with prevailing neighborhood character. iii. Urban Design Element Policy 3.1: Promote harmony in the visual relationships and transitions between new and older buildings. iv. Urban Design Element Policy 3.2.12: Encourage new building design that respects the character of nearby older development. v. Urban Design Element Policy 3.5: Relate the height of buildings to important attributes of the city pattern. vi. Policy 3.6: Relate the bulk of buildings to the prevailing scale of development to avoid an overwhelming or dominating appearance in new construction. vii. Arts Element Objective I-1: Recognize the arts as necessary to the quality of life for all segments of San Francisco. viii. Policy I-2.2: Continue to support and increase the promotion of the arts and arts activities throughout the City for the benefit of visitors, tourists, and residents. ix. Arts Element Objective VI-1: Support the continued development and preservation of artists and arts organizations spaces. x. Mission Area Plan Policy 1.2.1: Ensure that in-fill housing development is compatible with its surroundings. xi. Mission Area Plan Policy 1.5.2: Reduce potential land use conflicts by carefully considering the location and design of both noise generating uses and sensitive uses in the Mission. xii. Mission Area Plan Policy 3.1.4: Heights should also reflect the importance of key streets in the citys overall urban pattern, such as Mission and Valencia streets, while respecting the lower scale development that typifies much of the established residential areas throughout the Plan Area. xiii. Mission Area Plan Policy 3.1.6: New buildings should epitomize the best in contemporary architecture, but should do so with full awareness of, and 3.

respect for, the height, mass, articulation and materials of the best of the older buildings that surrounds them. 10. The Board recognizes that there are provisions in the Mission Area Plan that may be viewed as supportive of the proposed Project height, including Policy 3.1.3 (Relate the prevailing heights of buildings to street and alley width throughout the Plan Area) and Policy 3.1.4 (noted above in paragraph 9(b)(xii)). The Board finds that as applied to the unique facts presented by this appeal, any support for the height of the Project offered by these provisions is outweighed by the other policy provisions listed in paragraph 9, above. The Board further finds that though Policy 3.1.4 identifies Valencia Street as a key street for purposes of building heights, the larger portion of the Project is proposed to be located on Hill Street, which is residential in nature, and as such, the Policys stated intent for building design to respect[ ] the lower scale development that typifies much of the established residential areas throughout the Plan Area controls. 11. As a separate an independent basis for its determination, pursuant to the Boards discretionary authority found in San Francisco Charter Section 4.106 and San Francisco Business & Tax Regulations Code Section 26(a), under the unique facts presented by this appeal, the Board finds that permitting the Project without the imposition of the additional conditions set out below (such as the reduction in height by the removal of the fifth floor and the imposition of sound mitigation measures), would adversely affect the surrounding property and its residents, inhabitants and cultural uses, and would not be in the best interest of the community for reason set out in the Findings above. DETERMINATION Based on the above Findings, the Board of Appeals grants the appeal, overrules the Department of Building Inspection, Planning Department and Planning Commission, and approves the Permits on condition that: A. The top (fifth) story of the Project shall be removed and the height of the roof line of the Project reduced to 451. B. The entire wall at the property line adjacent to The Marsh be constructed to have a 50 dba (decibel) acoustical value. C. The roof deck at the second floor be modified by adding a planter or planters filled with shrubs or other plants at least six feet in height on the side of the deck adjacent to The Marsh, which planter or planters shall extend the full length of that side of the deck, to mitigate the impact of noise from the deck. D. A construction-relations liaison, who will generally be present on the Project site daily throughout the construction, be designated by the Project sponsor. The Project sponsor shall provide the liaisons phone number and email address to all property owners and occupants within 150 feet of the Project site. The liaison shall do the following: i. Convene a meeting with all interested neighbors on-site or near the site at least one month prior to the start of construction to discuss the initial plan, timing and details of construction and shall address any potential conflicts brought up at the meeting. Hold regularly scheduled monthly meetings with neighbors to discuss issues that arose the previous month and construction plans for the following month, and address in good faith prior and future anticipated issues raised by neighbors. 4.

ii.

iii.

Provide at least 5 days advance written notice to owners and occupants within a 300 foot radius of any exterior boundary of the site (Notice) of the meetings described in subparagraphs (i) and (ii), above. Any interested person, whether required to receive Notice or not, shall be allowed to attend these meetings. The Notice may be in the form of an email or other writing, and shall use the names and addresses of the owners as shown on the latest citywide assessment roll in the Office of the Tax Collector.

When the liaison is unavailable, the Project sponsor will act in the liaisons place. E. Project sponsor shall halt all truck traffic to the site and all construction work resulting in any noise-generating equipment during performances at The Marsh that cannot function in the absence of interior silence; provided The Marsh notifies the construction-relations liaison in writing (email or other writing) at least two weeks in advance of such performances. The Project sponsor shall not be required to comply with this condition more than twenty (20) times per year. F. Trucks coming to the Project site during construction shall not idle for more than five minutes and shall not park illegally in front of The Marsh property. Trucks that must remain running to function on site, such as concrete trucks during a pour, shall not be considered as idling. G. The following language shall be included in the following documents: (1) marketing materials for the Project, (2) required disclosures to advise prospective owners and occupants prior to making an offer to buy or rent, and (3) the Projects Covenants, Conditions and Restrictions (CC&Rs): The immediate neighboring property to the south (1062 Valencia Street) is owned and operated by a nonprofit theater. The use of such theater creates sounds typical of an entertainment use, including loud dialogue, amplified sound and live and recorded music. Owners and occupants understand that patrons of the theater may drop off and pick up performers and patrons before and after each show and patrons may queue along Valencia Street at the beginning of some shows and leave en masse at the end of shows, producing parking, traffic and noise impacts expected of such activities. H. Purchasers, tenants and subtenants of any unit at the Project, including the commercial unit, will be required to sign an Affidavit under penalty of perjury containing the following language: I have read and understand the Notice of Special Restrictions (hereinafter "NSR") that was imposed by the San Francisco Board of Appeals as a condition of approval for the creation of a mixed use project at 1050-1058 Valencia Street. I understand that the immediate neighboring property to the south (1062 Valencia Street) is owned and operated by a nonprofit theater. The use of such theater typically creates sounds typical of an entertainment use, including loud dialogue and amplified sound, and live and recorded music. Owners and occupants understand that patrons of the theater may drop off and pick up performers and patrons before and after each show and patrons may queue along Valencia Street at the beginning of some shows and leave en masse at the end of shows, producing parking, traffic and noise impacts expected of such activities. Because the character of the adjacent use has been disclosed to me in this document and I have personally observed the conditions immediately 5.

adjacent to this property (1050-1058 Valencia), I hereby acknowledge that I may have very limited or no right to object or protest the lawful operation of the legal entertainment uses in the area in existence at the time I acquire an interest in this mixed use project. I further agree to provide a copy of these special disclosures to all of my successors in interests. I. The requirement to satisfy the conditions in paragraphs (G) and (H) shall cease if the property at 1062 Valencia Street is no longer in use as a nonprofit theater.

J. Construction activity is allowed only during the following periods: 7:00 a.m. to 4:00 p.m., Monday through Friday, and 7:00 a.m. to 12:00 p.m. on Saturdays. Notwithstanding the preceding periods, for interior finish work which would not result in any noise beyond the property line, the interior work may be performed during the following periods: 7:00 a.m. to 6:00 p.m. Monday through Friday, and 7:00 a.m. to 1:00 p.m. on Saturdays. From mid-June to mid-August loud construction activities, including but not limited to jackhammers and pile driving, shall not occur after 12:00 p.m. K. Prior to the lifting of the suspension of Building Permit Application No. 2010/12/27/7437S by the Department of Building Inspection, the Project sponsor shall execute and cause to be recorded against the Property a Notice of Special Restrictions containing all of the conditions set out herein in the form attached hereto as Exhibit A. The undersigned hereby certify that the Board of Appeals adopted the findings above at its regular meeting on January 15, 2014.

Chris Hwang, President

Cynthia G. Goldstein, Executive Director

6.

EXHIBIT A

RECORDING REQUESTED BY: And When Recorded Mail To: Name: Address: City: State: California

) ) ) ) ) ) ) ) ) ) ) Space Above this Line For Recorder's Use

NOTICE OF SPECIAL RESTRICTIONS

I, (We) ________________________________, the owner(s) of that certain real property situated in the City and County of San Francisco, State of California, more particularly described as follows (or see attached sheet marked Exhibit A on which property is more fully described):

BEING Assessors Block 3617, Lot 008, hereby gives notice that there are special restrictions on the use of said property imposed by the City and County of San Francisco Board of Appeals pursuant to San Francisco Charter Section 4.106 and San Francisco Business and Tax Regulations Code Article 1, Section 26(a). Said restrictions consist of conditions attached to the approval of Building Permit Application No. 2010/12/27/7437S by the Board of Appeals (Appeal Nos. 13096 and 13-098) and are conditions that had to be so attached in order that said application could be approved by the Planning Department under the Planning Code. The restrictions and conditions of which notice is hereby given are: 1. The top (fifth) story of the Project shall be removed and the height of the roof line of the Project reduced to 451. 2. The entire wall at the property line adjacent to The Marsh be constructed to have a 50 dba (decibel) acoustical value. 3. The roof deck at the second floor be modified by adding a planter or planters filled with shrubs or other plants at least six feet in height on the side of the deck adjacent to The Marsh, which planter or planters shall extend the full length of that side of the deck, to mitigate the impact of noise from the deck. 4. A construction-relations liaison, who will generally be present on the Project site daily throughout the construction, be designated by the Project sponsor. 7.

The Project sponsor shall provide the liaisons phone number and email address to all property owners and occupants within 150 feet of the Project site. The liaison shall do the following: a. Convene a meeting with all interested neighbors on-site or near the site at least one month prior to the start of construction to discuss the initial plan, timing and details of construction and shall address any potential conflicts brought up at the meeting. b. Hold regularly scheduled monthly meetings with neighbors to discuss issues that arose the previous month and construction plans for the following month, and address in good faith prior and future anticipated issues raised by neighbors. c. Provide at least 5 days advance written notice to owners and occupants within a 300 foot radius of any exterior boundary of the site (Notice) of the meetings described in subparagraphs (a) and (b), above. Any interested person, whether required to receive Notice or not, shall be allowed to attend these meetings. The Notice may be in the form of an email or other writing, and shall use the names and addresses of the owners as shown on the latest citywide assessment roll in the Office of the Tax Collector. When the liaison is unavailable, the Project sponsor will act in the liaisons place. 5. Project sponsor shall halt all truck traffic to the site and all construction work resulting in any noise-generating equipment during performances at The Marsh that cannot function in the absence of interior silence; provided The Marsh notifies the construction-relations liaison in writing (email or other writing) at least two weeks in advance of such performances. The Project sponsor shall not be required to comply with this condition more than twenty (20) times per year. 6. Trucks coming to the Project site during construction shall not idle for more than five minutes and shall not park illegally in front of The Marsh property. Trucks that must remain running to function on site, such as concrete trucks during a pour, shall not be considered as idling. 7. The following language shall be included in the following documents: (1) marketing materials for the Project, (2) required disclosures to advise prospective owners and occupants prior to making an offer to buy or rent, and (3) the Projects Covenants, Conditions and Restrictions (CC&Rs): The immediate neighboring property to the south (1062 Valencia Street) is owned and operated by a nonprofit theater. The use of such theater creates sounds typical of an entertainment use, including loud dialogue, amplified sound and live and recorded music. Owners and occupants understand that patrons of the theater may drop off and pick up performers and patrons before and after each show and patrons may queue along Valencia Street at the beginning of some shows and leave en masse at the end of shows, producing parking, traffic and noise impacts expected of such activities. 8. Purchasers, tenants and subtenants of any unit at the Project, including the commercial unit, will be required to sign an Affidavit under penalty of perjury containing the following language: I have read and understand the Notice of Special Restrictions (hereinafter "NSR") that was imposed by the San Francisco Board of Appeals as a 8.

condition of approval for the creation of a mixed use project at 1050-1058 Valencia Street. I understand that the immediate neighboring property to the south (1062 Valencia Street) is owned and operated by a nonprofit theater. The use of such theater typically creates sounds typical of an entertainment use, including loud dialogue and amplified sound, and live and recorded music. Owners and occupants understand that patrons of the theater may drop off and pick up performers and patrons before and after each show and patrons may queue along Valencia Street at the beginning of some shows and leave en masse at the end of shows, producing parking, traffic and noise impacts expected of such activities. Because the character of the adjacent use has been disclosed to me in this document and I have personally observed the conditions immediately adjacent to this property (1050-1058 Valencia), I hereby acknowledge that I may have very limited or no right to object or protest the lawful operation of the legal entertainment uses in the area in existence at the time I acquire an interest in this mixed use project. I further agree to provide a copy of these special disclosures to all of my successors in interests. 9. The requirement to satisfy the conditions in paragraphs (7) and (8) shall cease if the property at 1062 Valencia Street is no longer in use as a nonprofit theater. 10. Construction activity is allowed only during the following periods: 7:00 a.m. to 4:00 p.m., Monday through Friday, and 7:00 a.m. to 12:00 p.m. on Saturdays. Notwithstanding the preceding periods, for interior finish work which would not result in any noise beyond the property line, the interior work may be performed during the following periods: 7:00 a.m. to 6:00 p.m. Monday through Friday, and 7:00 a.m. to 1:00 p.m. on Saturdays. From mid-June to mid-August loud construction activities, including but not limited to jackhammers and pile driving, shall not occur after 12:00 p.m. The use of said property contrary to these special restrictions shall constitute a violation of the Planning Code, and no release, modification or elimination of these restrictions shall be valid unless notice thereof is recorded on the Land Records by the Zoning Administrator of the City and County of San Francisco. Dated: _________________________ at San Francisco, California.

_____________________________________ (Signature of Owner)

This signature must be notarized prior to recordation; add Notary Public Certification and Official Notarial Seal below:

9.