and i do have to take time off. if i have to take time off for my back, i can come home and come to a peaceful, restful place without having to ask for permission. i believe the compressor does not belong. just a last response -- commissioner garcia: actually, your time is up, sir. it is not fair to the other party to let you continue. >> again, commissioners, i did want to repeat that she, as she told all of you, when she does any sculpting, if she does it during the day and possibly just during the weekdays, -- when she does any sculpting, she does it during the day, and she does not do this full time, so she is not doing this every single day.

again, she does this as a hobby, so it may just be for a few hours per day. the other thing i did not think about with the compressor issue is that they do not run constantly. they run for a while, they build up pressure, and then it cuts off. so there is not this constant norway's. it is a much newer compressor, -- there is not this constant noise. if she had bought an older compressor, it would probably be 1.5 times as loud. when i did do a noise study for a project, which was on market street, and we did a study to measure the level, just adjacent to the building was a gas station, and it did have a compressor that was on the back of the gas station, and it would go on every 15 minutes, and so each time this compression --

compressor would go on, the level would go up about 10 decibels. the was this increase in the decibels n level, but late at night, we are already measuring from 70 decibels to 90 decibels, and this is up until 2:00 in the morning, so the of the thing is we're planning on doing installation of the enclosure -- so the other thing is we're planning on doing installation of the enclosure. -- insulation of the enclosure. this needs to be enclosed. so with this in closure and the insulation, we should be able to

reduce this by 20. commissioner garcia: from what? >> it will be about 63. commissioner fung: what about the vibration? >> it is anchored to the concrete slab that was put there for the compressor, and how this glove was poured, i am not sure, -- how the slab was poured, i am not sure, so i think the vibration level will be very small if nothing at all. commissioner fung: and how did you measure the ambient noise. for the location itself? -- >> for the location itself? vice president goh: i think he

was talking about the other project. commissioner garcia: he mentioned something. >> i would be glad to do anoise l -- a noise level test, but i am momose possible it will be about 85 or 90 decibels. -- but i am almost possible re- deposited it will be about 85 or 90 decibels -- i am almost positive. vice president goh: and was there a permit for the foundation anchor bolts and whatnot? >> yes. president peterson: i do not understand the relationship.

are they in a joint venture of some sort? is this part of the lease tenant agreement? >> i believe it is part of the agreement between the landlord and tenant. she lives next door to mr. berrios' brother, dennis, on nevada street, and he knows her, and for some reason, she had to leave, and it was suggested that she speak to jose about possibly renting the space at andover. because she does this sculpting, she said she wanted to have a compressor at andover, so this was something that was worked up between them.

president peterson: so your tenant reimburse them? and how many tenants are there -- so your tenant reimbursed him? commissioner gorse: -- garcia: police. we may be wanting to ask the same question. -- commissioner garcia: please. we may be wanting to ask the same question. vice president goh: i would like to know about the toxicity of marble dust. commissioner garcia: talking about moving it further into the backyard, and there may be a structure?

>> -- commissioner garcia: i think 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