board of a field -- san francisco board of appeals stipulates at the discretion of the president, except with a starter, other rules to provide required procedure, meeting shall be conducted rules of order. the board has conducted meetings not in conformance with the rules of order. i am bringing this to the attention of the board and requesting it comply with the san francisco charterer and the city board of appeals rules of the board of appeals when conducting its meeting. thank you. >> thank you. is there any other public comment? seeing none, we will move on to commissioner's comments and questions. item number three, for your consideration are the meetings and who -- the minutes for the

may 18, 2011 meeting. >> seeing none, i will move for adoption during good >> is there any public comment on -- i will move for adoption. >> is there any public comment on this item and? we will move to the role of h -- to calling the role. [calling fovotes] >> this is adopted. >> item 4a, a jurisdiction request. the board received a letter from jonathan sacks asking that the board take jurisdiction over application who 2009/12/18/03506

s. the request was received on may 3, 2011. the project is an elevator at the rear side of the structure. we can start with the requester. you have three minutes. >> my name is jonathan sacks. i am here with my wife. our neighbor convince us to not object to his building permit are promising an elevator insulation would not generate motor noise. this is in exhibit b to the response. my note said, provided it is provided to insulate all motor noise from my residence -- it does not say some motor noise or most motor noise.

it says all motor noise. we ask about this because our right to challenge at its issuance was usurped by a false promise. he has ignored our agreement, and his response tonight proves that. to defend himself, he hired an expert who broadcast 20 decibels of noise in my bedroom window. that is twice the noise of mosquito makes and buzzing around inside a tent. it is four times the level of of of all lawyers. it is certainly not insulating against -- and the level of noise. it is certainly not insulating. our bedroom is often open. that would double the intrusion to 40 decibels. that window is less than 3 feet from the proposed elevator motor. a photo we brought tonight

proves the window opens wide, but despite his claim that it is inoperable, there is a picture of it open. he cannot address hanging it from apply wood roof in a prefabricated tower or the vibration noise it might make to my house because it sits just inches from the master bedroom outer wall. that is because the experts studied an elevator in oakland. peters elevator is not yet installed. in the proper forum, my lawyers will produce experts who believed the installation will likely increase noise in my bedroom well beyond what is estimated by his experts. peter might already suspect as. he told me his contractor, who has never installed one of these towers inches from a neighbor's home and rushed to shore up the elevator shaft after our filing

with this board. peter has had ample opportunity to live up to our agreement. we have repeatedly asked that he higher noise mitigation experts. he has not. he argues this project should continue without interruption because he spent roughly $166,000 on his permit, but any interruption would be self- inflicted. he could have avoided this action by living up to his agreement. peter is here tonight. am i done, or do you want me to finish this last paragraph? >> your time is expired unless someone has a question for you. i do not see someone. >> we will hear from his attorney. >> good evening, commissioners. i am here on behalf of peter and

caro. i want to point out is to permit was issued 10 months ago. construction is nearly complete. we have spent $166,000 so far on reliance to the permit. there was no prior objection to this permit, despite a meeting, despite notice of a building permit. all notices indicated a hoist way of the elevator would be located exactly where it is a constructive, very close to the window, but they have known about that location for the last two years. they have purchased and are installing a quiet, residential elevator inside an insulated hoist way. all indications are that it will be inaudible within the bedroom. we measured noise at the property with an identical elevator. now they estimate it will create 40 dba of noise.

that is below the ambient levels. with noise reduction, it is not an operable window. from the window inside the bedroom, it will be 20 dba at most and nearly inaudible. state law standards are 40 d -- 45 dba. they are simply speculating this is not true, but they have no proof it will be audible within the bedroom. suspending the permit will not resolve that this agreement. it is not until the elevator is installed but they will be able to do some measurements header in the different than what he has measured already. -- measurements that they are any different than what he has

measured already. after the elevator is installed, if it does not operate quietly as it should, there will be other remedies the requester could have, but at this white, suspending the permit is not an appropriate remedy. -- at this point, suspending the permit is not an appropriate remedy. they are installing the elevators so they can stay in their home of 47 years. carol has parkinson's disease and has great difficulty navigating the four levels are high -- levels of her house. a prompt construction is necessary for her health. mr. sikes has other remedies as the elevator is installed. >> the picture we are shown, is that the bedroom window and you are mentioning?

>> i did not see the picture. good >> it looks like around window. the bedroom window is round or rectangular sign? the fixed window? >> i believe it is rectangular. >> thank you. >> i would have to see a picture. >> counselor, the letter from your sound experts who -- her reading was taken at what time of today -- the reading was taken at what time of the day? >> the term. >> only one time? >> -- date time. >> only one time? >> i believe. >> is there any public comment? seeing none, commissioners, the matter is yours. >> i have a question for mr. duffy.

it goes more to the merits, but i am curious about elevators. would you normally expect to see some insulation or soundproofing around the exterior? >> i did look into the building code, and there is nothing there for elevators in this type of thing. the only construction we would require is because of the proximity to the property line. the property line would have to be one wall, which would have sheet rock on the inside and the outside and plywood citing as well. i believe a days -- it is r 19. that is probably going to give some insulation, but it is not

fair for sound. >> they are going to make sure it is installed, because my indication is it is not installed. >> if there was air-conditioning required, i would imagine the building inspector saw that. >> so there is nothing that says it required installation. >> i went there yesterday, and it was probably 70% complete. the work was in compliance with the plans. i do not know for sure whether it was inspected. if it is required, our inspectors are out.

>> what do you have to say about the idea that it comes up somewhat regularly where a neighbor will forgo their rights to appeal based on a private agreement, and where we certainly do not want to discourage all appeals when they can work it out, and here is a case where they have worked it out, and there is our problem. >> sometimes there is a change of heart, but maybe people do not understand what the construction is going to be when it is on paper. some people change their mind. >> thank you. reaction did you just looked at it from the outside or inside? >> i went inside.

>> i did look at the foundation, and it is usually ok to put the sheet rock on. >> i have a question on these permits. what assurances are you relying on based on the property owner with respect to the elevators and? are you relying on a letter or the prior agreement between the parties to give a permit? >> we are not. >> from a built-in -- from the building department point of view, we would want to make sure it meets the requirements. i believe it does not. it is not considered a shaft,

because it is not more than four stories. there is a difference in the requirement for codes for new doors and openings, but usually residential elevators do not reach that. >> thank you. >> i have some further questions for the permit holder. is there glass walls on the elevator? >> i think there are. i have not been out there.

the want to join me? >> come forward, sir. >> i am the holder of the permit. my question was -- let me rephrase the question. the elevation of your addition shows windows in the elevator shaft. >> yes, on the north side of the elevator shaft, there are windows to allow light to come in the house through those windows, so in effect, the voice way is up against the house so we do not block all the lights. my neighbor is not to the north. my neighbor is to the east.

>> i understand. are there any openings in the wall to the shaft? >> no. >> the drawings are not very expensive. you have additional documentation as to the wall construction? >> yes, the voice way is made out of steel. >> i am talking about the shaft itself. they have got insulation on inside, and they have sheet rock and that yellow board on the outside and sliding on the outside.

>> thank you. >> if someone has a question for an -- for him. it is our turn to talk and make a decision. thoughts? >> i will start off. whether the window is operable or not i do not think has any relevance. so far it seems best everything has been done according to code, and as for private and

agreements, in no case would we have anything to say about that, so i want to deny the requests. >> i just want to add i did not hear any testimony or see any evidence from the city in issuing this permit, and there was a significant amount of money spent on building the elevator, and for the reason, i am leaning in that same direction and -- the nine. >> i will take the opposite position -- denying. karzai will take the opposite position. the question is why during those e-mails the specific information on construction of the shaft was not shared.

the fact is that afterwards they had an expert provide some russia now, and i except those findings. the problem this but was the only one point during the day. ambient noise is a change, especially at night. any moving mechanism is going to create noise, and this has windows on both sides. it would have been relatively easy as they had negotiated it early on common adding more insulation, -- early on, adding more insulation. it would have been relatively easy, either facing the requests here or facing potential

actions. it is a relatively simple fix. goo>> is something to be fixed privately, and our area is to see if there was fraud, which is unfortunate. i think it goes beyond the scope, and i would urge if there could be a private remedies to do it sooner rather than later, but i do not see that we can grant jurisdiction at this. >> i think it is a problem if a neighbor forgoes the right to appeal based on the promise.

we encourage neighbors to get together and settle and hopefully not appear before us. now here we are. i do think this could have taken a look at the installation before it was she dropped. region -- it was sheetrocked. we also heard the appellant say in the proper forum his lawyers will say the agreement was not complied with, and it may be true and we are not the proper forum for that, given that it may or may not be something that causes the jurisdiction to be blown. is there a motion?

>> i am going to make a motion. >> we have no way to assume -- do you have a question? >> if it turns out the apparatus exceeds the allowable noise, there are opportunities for the neighbor to complain to those agencies and try to have something done about it during your -- done about it. his contract davis to make sure it is done correctly. i would like to see the motion

that is made. as i think the same rule applies tune, mr. duffy -- applies to you, mr. duffy. >> the you have something to add? >> i would say insulation was required, and it was inspected. there was also something asking debt they check the approved plans, so that will be dealt with in the next few days, and i can add to that complaint to make sure there was insulation put in. when he was talking about extra insulation, i think he was talking about the rules level. i can certainly add that to the complaint we got a couple days

ago. you can rest assured there was insulation required. that is something you can rest assured will be looked into. >> the problem is these plans are not very extensive. they are extremely simple. thermal insulation is not going to give you much acoustic value. >> it would not be required by what i know of.

>> can i suppose something? i propose we continue this for one week. the time to do this is now before the elevator is in. if they want to put in insulation now, now is the time to do this relatively inexpensive operation. once--- was the elevator is in, it is going to be difficult. >> i am going to oppose that, because i do not feel those types of details for him to have

not applied for an appeal or take it anywhere else. that is not an issue for this board. i do not think there is any reason to grant it. i am going to oppose it. >> i am disinclined to extend the time for making a decision on this request for similar reasons. i do feel sympathetic in operating with good faith, but i think a threat has been made to bring legal action, i am sure a very real threat.

>> i appreciate your efforts i think we are in the same boat. >> i did not make the motion. >> motions for continuance always take precedence, but i am going to move we not grant a restriction. -- not grant jurisdiction. >> on that motion, and the ninth jurisdiction. [calling votes. president goh: no. >> the vote is 3-22 to deny

jurisdiction. >> we will call item no. 5 which is 11-036. this is for the property and building 146 on treasury island, and it is an appeal of an extension of a tobacco product sales and establishment permit non march, 2011. now this is in regards to case fd-011-17, and we will start with the appellant. you have seven minutes. >> i am the attorney. the request is for the 25-day extension for the sale of tobacco items. this store was in treasure

island. it was opened in 2008, and prior to that, it was on the island. the appellant has had his license for 26 years. he has never suffered one citation, which speaks volumes for his commitment. he did on one occasion half and an employee -- have and employees of some cigarettes to an undercover police officer -- an employee sell some cigarette to an undercover police officer. i have represented this family for 21