>> welcome back to the december 15, 2010, meeting of the board of appeals, the last meeting of this board for this year. mr. pacheco, could you call item no. 6, please? secretary pacheco: item number six, appeal number 10-076, raymond berrios vs. the

department of building inspection, 750 andover street, protesting the issuance on july 2, 2010, to jose berrios, and electrical permit. >> please step forward. you have three minutes, sir. >> good evening, commissioners. i and the aged and architect for the permit holder, the legal property owner of the residence at 750 andover. the last time that we left, you requested three items. one is that we performed a sound reading at the site, which we have done. the second item was to possibly study alternative locations for

the compressor unit, which was at the time located below the bedroom window of the tenant who filed the appeal. the third item was to present the schedule, which we did at the last meeting, but we have reviewed the schedule that we discussed previously, and we will present another schedule. i performed a sound measurement at the site twice during the same week.

i used what is called -- i have worked with them before, and i did this down measurements at the site. i did four measurements each day. the second was at 11:00, and the fourth was at 5:00. because of its self will measure 3 readings.

there is also the maximum, and for whatever duration period that i said before, -- the maximum highest discipline rating was 92.4 decibels. this was extremely high and when the traffic is at its highest. the lowest was at 2:00, 2:15 that day. [bell] can i continue? on the second day, which was thursday, december 2, the discipline rating was --

commissioner hwang: let's stop there. is this your submission? >> i do have copies of this. commissioner garcia: did you apply -- supplied this to the appellant? this was not to hearing oral presentation at the last minute that was also due to the appellant. commissioner hwang: do you have the copies right now with you? can you give one to the appellant? he has already read into the thing.

commissioner fung: you also mentioned the location? >> yes, and after looking at all of the locations, we decided that none of the locations was suitable, so we decided to locate the compressor unit in the existing garage, in the corner, and that is the corner that is furthest from any of the neighbors. that is at the corner of benton and andover. vice president goh: -- commissioner garcia: how is that different?

>> it was the ground window. it was to the opposite side of the building. and, again, it is going to be enclosed in the closets, acoustically insulated, and hopefully reduce to 60 decibels or less, which is about the december reading without the compressor reading, and as far as the schedule, originally, we have the schedule for the weekdays to be between 9:00 a.m. and -- we would like to propose that she be allowed to do her work.

commissioner hwang: can you put the picture of the site of again, please? >> sure. the original location was back here in the rear yard. the rear property line is here, and we have decided that the best location in the existing garage, -- commissioner hwang: who lives above the garage? tenants one? i am asking questions. is there a problem? i am asking questions for clarification, so attended one is -- so tenant one is -- and

tenant two is up there, so it would be in the garage, ok, thank you. commissioner garcia: 50 ambient db's are 60 -- if the ambient db's are 60 -- >> it might be possible to do it to 63. it does what to the noise level? -- commissioner garcia: it does what to the noise level? it would blend? >> yes. commissioner garcia: ok. i am sure the other side would

have another opinion. president peterson: ok, let's hear from the other side. >> i did not even know we were making a presentation. they failed to follow the brief. we reached out to them twice after the hearing, inviting them to come into the unit. i understand the issue of ambient noise outside. incoming calls. i left this hearing two months ago expecting them to make a request to come into my unit or my clients unit with a sound detecting advise. they would turn on the unit, or there would be one that would match the decibels, and we would see how loud it is in the unit.

i do not care how loud it is outside. i care how loud it is in his bedroom, ok? i reached out to the architect twice. no response. the architect was outside ones. my client wasted in, and we were waved off. i am a little angry about being blindsided by this hearing, and they make this presentation. the correct way with a bid to take a measurement inside his bedroom. now, they did show up a couple of days ago and turned on the unit outside. i was not present. they actually had to knock on the door because they blew out his circuit, and the window shades were shaking it was so loud, so moving it against the garage means that the window blinds in the living room are going to shake, but ambien noise does not cancel out, and this commission asked for tests inside the unit.

they failed to do so. to hand me this stuff makes no sense, and the other thing that is crazy, it is his garage, so i am not sure why they think they can install a piece of equipment from underneath his bedroom window in a garage he is currently renting. i believe the commission said to do the tests. they asked to the printer to bay -- but they asked to basically event my client. >> there is bias. a consultant would be hired to do a proper testing.

the garage, i have a retaining wall. this is only going to create another situation, and there will be more noise. i do not think this is being handled in a manner that afforded us the ability to verify everything in a professional manner. thank you. president peterson: we have a question for you. the garage is yours? >> i have lived in this home for 20 years.

i had the garage door seals. people connected with my family coming in. so subsequently, with the new tenant coming in, i was trying to maintain my privacy and secure my materials. this garage has been mined for the last 20 years and will continue to be. yes, with regard to the test, last thursday, i believe it was -- president peterson: i did not ask about the test. i wanted to know, and you answered. vice president goh: what happens with the test? >> last thursday, i was in a lot of pain. they were attempting to turn the compressor on. they ran an extension cord out

to the compressor. i was already medicated and dealing with my pain. vice president goh: they were trying to turn the compressor on at its current location which was outside of the window. got it. >> it stayed on for about 1.5 minutes, and then they turned it off. vice president goh: it was not in the garage, the compressor? >> the existing location where it is at right now. vice president goh: thank you. president peterson: mr. kornfield, anything to add? vice president goh: i have a question for mr. kornfield. commissioner fung had asked last time what are the permits that are needed for this kind of a thing.

i think the question about permits might have been directed -- >> i can give you my opinion at the moment, if you like. there are the electrical permits to provide electrical service, in this involves the equipment itself in the backyard. -- and this involves the equipment itself. i know it is a large and heavy piece of equipment. i would not consider it to be a serious safety hazard. typically, notwithstanding outside of this case, other than the letter of system, i cannot actually imagine that we would require a building permit for the compressor itself. if it was in a location where it might block an exit or cause a

hazardous condition, perhaps we would consider that, but the foundation itself is not a structural issue. i just do not think that this rises to a level -- it is not specifically exempts either. vice president goh: at the last hearing, and maybe this came from mr. sanchez, sorry if it did, but because it needed a permit, it needed a permit because the foundation would be for rebar, anchor bolts, something called "ice a laters -- "isolators," and i do not know what that is compound but --

>> i do not think it rises to the level of meeting a permit for those elements. vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise, between us, as well, so i think it is in the legitimate code issue, one that would be legitimately be before the board, in my you personally. commissioner garcia: maybe this is not a question for you, but

if this individual is a tenant and had some legitimate lease, although the true owner of the building could get a permit to put this compressor in that portion of the property that is under lease, by this tenant, is that -- >> that, i cannot answer about who's right. commissioner garcia: i guess the better way to ask this is it seems we have had issues before the board whereby no one can get a permit on someone else's property, and as a lessee, that is temporarily or property, so -- >> either the owner or the owner's agent can get a permit, so they could be a messy, but they have to be acting as the owners' agent when they do that. i wanted to mention one or two more things very quickly about noise and noise enforcement. noise regulations are normally

in article 29 of the police code, and there is a fixed source noise, which is this type of noise, regulated by the department of public health, and that goes far beyond what i was saying about building code and noise control standards and construction. they actually have standards for what may or may not be reasonable in commercial or residential uses there is a nuisance noise under article 29 which is regulated by the police, themselves, but this is regulated by the health department, and i am sorry. i should have perhaps mentioned that earlier and been participatory. >> we know you are not an acoustical engineer, but does it

seem logical to you that if you have something that produces 61 db or the and the noise in the area is 61 db, and you add to that india nor is something that produces 63, that the noise level does not go up, it would blend? >> i am afraid i am not -- >> -- commissioner garcia: thank you. >> is there any public comment on this item? commissioners, the matter is yours. commissioner fung: just a couple of technical comments. commissioner goh isolated the devices that separate the piece of machinery from its anchorage to dampen vibrations and reduce

vibration-transmitted sound. it is interesting that there yard has fairly high in the and noise levels. there are not that many codes that related to sound transmission itself, , and there are residential units, such as condominiums. this division idea of the nature of the sound levels in the rear yard, which is quite high at certain times.

the issue here is really more of a civil nature dealing with the ownership of the property. if one was to utilize, and, by the way, let me backtrack, because i remember making some of those comments, and we did not ask that it be mutually tested for it. the question here is can the compressor technically have its impact in terms of sound and vibrations reduce sufficiently to not create a nuisance to the tenants, if it has eisa later --

isolators, if it is a created cabinet, if it can reduce it significantly, but also, what bothers one person sound wise may not necessarily bother another person, and so that is a variable. this particular case, however, has to be resolved in its long- term through the civil actions that they are going through. commissioner garcia: so what are your intentions in regard to this permits? commissioner fung: i believe the sound and vibration can be reduced, so i am prepared to -- commissioner garcia: what about

the issue of replacing the compressor in what may not be an accessible area? commissioner fung: i think the owner -- i may be treading in an area that i should not, but if there's an election is resolved, as i believe somebody mentioned in four months, then, perhaps, whatever we decide becomes moot. commissioner garcia: but at this juncture, you would uphold this permit? >> -- commissioner fung: yes. vice president goh: i guess i will china in because i am going

the other direction. -- i will chime in. additional briefing is allowed at three pages per party. we did not get any briefing. the questions that we had and the reason we wanted the continuance was for nor is steady for review of the falls of permits that would be needed for this, and for the hours of operation, which we got, we got a noise study only for the ambient noise. we did not get a noise study with regard to this compressor or with regard to the things that commissioner fung mentioned that could be used to reduce the noise for the appellant, and we also heard then at the original hearing that there was this

lawsuit, it was supposed to be decided in september, so given that we gave the party's an opportunity to file briefing, it to do the studies, to come forward with a viable alternative, i am inclined to overturn this permit, brigadoon not think this is a tenable situation for this appellant to live with a compressor, either directly under his window or in his garage. commissioner garcia: i am inclined to need to uphold or overturned but to continue. i think we made it very clear to the permit holder what this board wanted, and we cannot, at least, i cannot, maybe the other

commissioners can, for the basis decide the merits of all of the complex issues involved in this particular case having to deal with this particular permit. i want to know exactly about the construction, how the installation is going to be achieved, exactly where it is going to be, and under what authority it can be in the garage, if that is going to be the place it is. all the issues having to deal with all of the permits, and some citations as to what is allowed or not allowed having to deal with noise, i feel that we have incomplete information. i would lead more towards overturning than upholding, but if neither party is willing to that, then i would join vice president goh in overturning, but i would be willing to reconsider that issue, but before that motion is made, i

think it should be made extremely clear exactly what members of this board seem to want, which i thought had been done the first time. commissioner hwang: i would be inclined to continue, as well. i am wondering if there is any question here as to what it is specifically that is being asked. is the permit holder clear on what is being required? should this board continue the matter? were you not clear the first time, is the question. time, is the question. >> i think i was quite clear.