they had to somehow further encase it. >> there is nothing that i know of in the code that will prohibit it from being moved to another location. planning will have to address this. >> got sanchez, planning department. there would be allowed construction of 100 square feet. i am assuming they would be able to fit the compressor in that as well as any soundproofing. commissioner garcia: thank you, mr. sanchez. >> commissioners, the matter is submitted. president peterson: i have one question. what is the status of the permit? reading it, and there were these conditions with compliance of certain conditions in the permit. have these been met?

do you see this on the electrical permit? do not approve insulation until big complaint for insulation of the come presser is debated. do we have evidence? >> i think we could ask mr. kornfield to address that. commissioner fung: i think he discussed that earlier where he said the complaint had to be updated before this permit issue. president peterson: before they would sign off on it at the cfc? commissioner fung: at the same time there is another question whether the electrical permit is the only permit that is required. >> that is right. we will sign off. we will issue the permit as valid but will not sign off until we have resolve the outstanding issues. mr. sanchez has provided me with

some information to respond to your question. yah hoo says -- yahoo says marble dust is not poisonous if interested. it is calcium carbonate, like the white powder you find on chewing gum. it is granite dust which is the cause of silicosis and other problems. commissioner fung: the miracles of technology. commissioner garcia: he probably knew that already and was just looking for confirmation from whatever source he went to. president peterson: when do you plan to sign off? >> i am not in the inspection section of our department. but the electrical inspector will have to contact the building inspection division and confirmed they have resolved whatever this issue is. there is a little

interdepartmental coordination. commissioner garcia: it would seem to me that the following options are available. section 2909, noise limits in residential areas, is relatively clear they have to be below 45 decibels is someone was operating in the evening. if someone was to operate during the day, it still has to be lower than 55. there is a possibility of getting a variance, but it would seem that we should require that this compressor be in compliance with that. in order to get an acoustical engineer, have that tested, and figure out a way to insulate it would seem to be more expensive than placing it somewhere else in the yard, away from that window, and solving this

problem. i do not want to suggest this has anything to do with bad relationships between the two brothers. regardless of what the relationship was, it seems to me it is reasonable that one of those has to happen. it ought to comply with 2909 or be moved away from this window to where it is not going to affect this gentleman. he does at times sleep during the day, so it is not just a question of trying to keep it below 45 at night. it might be necessary to do that at some time during the day because he has to sleep then. certainly, 55 would be reasonable. commissioner fung: i think the sound issue is probably a little bit more complicated than just location. as we have heard in a number of

sound cases, the nature of the disturbance is extremely personal. the codes act as a general reference. i think there are three issues here. one is that the permit holder needs to do two things. one is whether they have the full permit application that they need to submit. there is also a building permit. secondly, they need to be able to demonstrate with some degree of accuracy what the ambient noise level is and what is going to be generated by this particular compressor and how you then attenuate the reduction of the sound through some type of structure. third, i would ask them to also consider some type of

operational our restrictions. i think all three come into play, whether we uphold this permit or not. commissioner garcia: what was the last one? commissioner fung: hours of operation. i am basically saying we need a continuance. vice president goh: i would agree with what has been said. commissioner garcia: would you agree they might solve this issue were they to move its some distance away from the house? commissioner fung: it is possible. that may not necessarily solve the situation. vice president goh: it also might make it worse for the other neighbors. i agree that we need to see the full set of permits. it looks like with an enclosure they're going to need a building permit. we ought to see what that looks like.

commissioner fung: i am going to move to continue this. let us first look at the date. november 3? is that acceptable to both parties? vice president goh: it is kind of a busy evening for us, though. >> october 20 is a little lighter, unless you want more time than that. >> i think they are going to need an acoustical engineer to figure this out. november 15 is good for us. commissioner fung: let us ask them what they need. vice president goh: if we hear

it on november 17, we will probably be hearing it at midnight. commissioner fung: we have a very large caseload that night. >> that is going to be a busy night for the board. commissioner fung: come forward, please. how much time do you require to do these things? >> i do not think it will take very much time. i am leaving on a trip the 19th. i think we will be back on the sixth or seventh of november. by the 15th, if that is the next date available, i should be able to take care of all of the issues, whether it is the permits or the ambient noise level strength. commissioner fung: we are not hear the 15th. it is either november 3 or

november 17. president peterson: there will be a lot of members of the public here for one of those cases. december 15? >> if should be fine. vice president goh: see if the appellant is available december 15. >> we can work with this. we would like to extend the opportunity to work with them on this issue if they are willing to work with us. commissioner fung: i am going to move that we continue this case to december 15 to allow the permit holder to ascertain all permits that are required before this particular installation to

have an acoustical analysis done related to not only the ambient noise levels but your proposed solution, and to propose some limitation to the hours of operation. both parties can think about that. >> we have already said the working hours would probably be between eight and -- commissioner garcia: we are not going to entertain new arguments about that. >> do you think the public might want to suggest hours of operation? commissioner garcia: i think it has to do with figuring out how to get the noise down, coming back with what the ambient noise is so we can have something relative to compare it to. commissioner fung: i think i am

suggesting that both parties think about limitations on the hours of operation. commissioner garcia: let me understand, then. are you saying you are thinking that if he were only to operate during certain hours of the day with a nose level out of compliance -- i do not think you were saying that. i am trying to make it clear. >> we are not. we are planning on making all of the reductions we need to do for the compressor. we will look at a different location as well. we will also do the ambient noise level study. commissioner garcia: thank you. >> did you want to have any of these items submitted in writing prior to the hearing? commissioner fung: yes. >> do you want all of them to be submitted in writing by the permit holder? is there any opportunity you feel necessary for the appellant

to have any written response, or is it simply to get these documents from the permit holder? commissioner fung: the permit holder should submit it in writing. the appellant should have the opportunity to review it at least once. >> that means those three items that are requested would be due 2 below thursday's prior to the hearing date. you would have to submit a response one thursday prior to the hearing date. the page limit? commissioner fung: i think they should be able to take care of everything within a couple of pages. >> would that be true for these three items? commissioner fung: if they do and acoustical study, there can be an exhibit. >> three stages -- three pages of argument each. you can have additional pages on

the acoustical study. if you have additional questions, you can call me tomorrow. >> the motion is from commissioner fung to continue this matter to december, 2010 to allow time for the permit holder to review all permit issues and acoustical issues. additional briefing is allowed by the permit holder 2 below thursday's prior, the appellant one thursday prior. three pages per party. vice president goh: aye. commissioner garcia: aye. commissioner garcia: aye. >> commissioner hwang is absent. this matter is continued. president peterson: we can move on to items 9 a and b. colorado that when you are

ready. >> calling items 9 a and 9 b, the last item. the appellants are the potrero boosters neighborhood association and raymond berrios. the protest is the issuance of family dwellings that encroach into the required rear yard. >> these cases are combined, which means we will give each

appellant seven minutes and then 14 minutes to the permit holder to respond. before we begin, vice president goh? vice president goh: i am acquainted with the park, the school, and some of the members of the nonprofit. i see one familiar face tonight. i do not have any more familiarity with the property than site visits might have given me. this familiarity will not bias my ruling tonight. >> in addition, i want to remind everyone who is in the room that when it comes to time for public comment representative of a party shall need to address the board during that party pep allotment of time. during public comment, when there is an association or organization of a party, representatives of that association including the board

members or officers need to speak during the time allotted to the party and cannot speak during public comment. i want to make sure everyone understands that going into this. >> that was going to be my first question, so thank you. i am christopher cole. i am going to be dividing this first seven minutes between myself and dick millet, who is a board member and officer of potrero boosters and testified in 1989 when the variance was denied for the same property. i sat through the hearing on the pharmacy and i heard two things mentioned during the comments of the board that i think are very important to this case as well. one is president. the other is credibility.

this case was decided in 1989. the owner of 1321 applied for a reargua yard variance. it was denied. there were findings of destruction of open space for a variance of somewhat less than is being requested. without precedent, we would be deciding the same things over and over again. it should be given a lot of weight. it is not always conclusive, but it should be given a lot of weight. the findings of the zoning administrator in 1989 of detriment should be carried over into 2010. the other thing is credibility. this also talks about the 1989 decision. that was not brought to the

neighborhood's attention until the star king open spaces located it and were able to find the decision and give us a copy of that. that is something that should have been known to the property owner. the property owner in 1989 was the direct seller of the property to the current developer. when the rear yard variance den ial is an important part of the sale, it should have been disclosed. it was not. i think this goes somewhat to the credibility of the property owner. i am going to address this more in my remarks at the end, but i want to put it out there now. the easement that exists -- we cannot simply ignore that easement.

it is a superior court order and is not something that can just be ignored by this board and should not have been ignored by the planning commission. i would love to give the rest of my time to dick millet. . thank you. >> i am vice-president with potrero boosters neighborhood association. i have some history with star king open space. i am an architect. the owner bought a property with a house on the rear yard. their plan is to demolish that house and built three units zone d rh-3. this means they are going to develop a vacant lot. i cannot understand how there are any reasons for any

variances of any kind, that there are any hardships. in a vacant lot is very easy to develop. if you do have any reason for v ariance, i am creating the hardships or my client is creating hardships. it is a simple thing. they have an ideal lot with a view. there is lots of open space behind it or beside it. nobody is going to be imposing anything on them. i do not understand how they cannot build within the parameters of the planning code and the building code, and i think they should. this has been going on many years. i do not understand at all. the boosters do not understand it. star king open space does not understand it and that is why we have been hanging in there. thank you.

>> i am audrey cole. i was first introduced to the open space through a garden club which i am also involved with which is on that same block of the property we are discussing. this location had a regular garden, a regular back yard. it opened out onto the open space, both the backyard and the open space. i do not know if you have been there, but it is a marvelous benefit. it is a gem for potrero hill. it is unique. it is therefore the neighborhood to take advantage of. i do not see any reason why this new building needs to have a variance for the yard at all.

none of the other places abutting the open space do. i am against the variance for that reason. thank you. president peterson: mr. kohl, are you finished with your time? >> one minute 38. >> we have plenty of time. let me get started a little bit on the easement so it is on your minds when the developer talks. we attached copies to the opening brief. i briefed it extensively. an easement is a right to use land in a limited manner. hear, the easement is quite limited. you can use it. the property owner can use it to access the property through star

king open space and park no more than two cars on this property. the developer would have us ignore that and say this is just a private agreement among property owners. that is not what this is at all. this was hard fought. it is a superior court order. it is as binding as anything could be. it is a property line. the rights of the developer to use the open spaces are limited to that. they cannot use it to bring in construction materials. the cannot use it to stage construction materials. they cannot use it to park construction vehicles. the cannot park three vehicles on it, although they do. it is something this board should take into account in its broad discretion in deciding whether this project could be built. if it is going to be built, put a condition on it.

do not make us come back and always try to enforce that. thank you. >> mr. williams? >> good evening, members of the board. i am steve williams. i am here representing star king open space. i am also going to give time to a member of the board of directors. as you heard, the most striking aspect of this case is that it has already been decided. apparently, the zoning administrator was not aware of the fact that this previous variance application was made in 1989. the decision was not issued until 1993. they waited until the litigation was resolved in court. but it is not mentioned. it is not reconciled in the new decision we have from july of this year.

in 1993, the za decided that not one of the five mandatory conditions for a variance could be met. not one. this present decision finds in favor of all five. nothing else has changed. the law is the same. the site is the same. the only thing that has happened is the project has gotten tremendously larger. if you go through the fault decision from 1993, added to my reply brief. , it cites the alternative of building to the front of the lot. that still exists. that is a general finding not particular to any project. it finds there is a predominant pattern on this lot of buildings on the front of the lot. if you look at my exhibit four, from the department, you will see that pattern. you will see that each locket

provides the mandatory rear yard except for the subject lot. if you look at the sanborn maps, every lot on this block base provides that mandatory rearguard, with the exception of that one building which is a historical anomaly in this case. the other properties in the vicinity do not enjoy this sort of intensity of development in the rear yard. that was a specific finding made back in 1993. they also do not enjoy this kind of lot coverage. if you look at what they are proposing, that are proposing a 70 foot foot print. that is what they are proposing right there.

compare that to all the other buildings. 15 feet in front, 15 feet in back on a 100 foot lot. no other building has that. this is absurd. this building has the most visual impact on the open space, and to provide additional rear yard coverage goes against the general plan. it goes against prior decisions by the department. it goes against the planning code. you are supposed to have 45% rear yard. you can build on 55 feet there. they are asking you for 70. do not overturn the previous decision. at a minimum, let us reconcile. have the department reconcile these diametrically opposed decisions just to keep them honest. i am going to turn over the rest of my time to the president of the board of directors of star king open spce. >> my name is caroline bird.

i am the president and a neighbor. we are a 3.5 acre protected grassland. it is publicly accessible, a volunteer run, and enjoyed by residents of the neighborhood and beyond. there is no reason for a rear yard variance. the property faces the same challenges as the other properties along that side. a variance will stop the public use of that space. it is an oasis in the city. 1521 is prominently positioned in the highest spot -- 1321 is prominently positioned in the highest spot. the rear yard provides a critical buffer between the buildings they showed you on the map in the open space. without that buffer, it will bring the big and bulky proposed building over 12 feet closer to

the open space. it is going to stand up properly -- prominently as being out of line with the others. it will also adversely affect the priorities of the san francisco master plan, which protects parks and open space and their access to some light, air, and this does. this is the side view in this picture, an image of what this is going to look like. this will be a large building as viewed from the open space. the building closer to the rear of the yacht will increase shadows and will decrease the views of twin peaks and the city skyline. the developers have designed the building to protect the light, air, and views of their neighbors, and we applaud and appreciate that effort. but it does not need to be at the expense of the open space. the light and air and views on to open space need protection as we