already made today. >> thank you. >> thank you very much. >> commissioners? the matter is yours. >> the sound varies with every person and i think that what is acceptable to one person maybe disastrous for another person. it's quite hard to establish a sound that everybody wants. if it currently established by the department, it's actually very generalized and i think that

the when you approach those levels that they allow above ambient, for me personally it would be something i wouldn't accept. but i understand there is the criteria that they have established that it has to address a wide variety of conditions across the city. given the fact that it's not just a simple percentage and straight line impact when the sound level is increased. it's greater than that. i think it's an issue that the criteria should be adhered to and i'm prepared to uphold the department. >> i guess i'm inclined the go the same way but i don't know if we can get something in there about extended period of

time for compliance. i don't disagree that there needs to be compliance and again i will be accused of being a stickler on this, since there is a standard i think it should be adhered to but i have concerns for the owner and the ability in the way it needs to be done. i don't know how they would structure this. i would ask the department to consider to explore options. >> coming from a small business backgrounds and my wife and i had two restaurants in the city. i definitely empathize with the owners. but will we find in the position that i'm leaning towards the position of the city and county health

department. as a business owner where they are working and trying to take care of their families, unfortunately you have neighbors that that's their quite time and that's their castle and that's why the standards that we have are enforced at this time. so i'm leaning the same as my fellow. >> commissioner, any comments? >> i do debate about this because i do feel that it should not be an absolute standard and that's why we have a variance procedure. i do however understand that under the circumstances there is a way to fix this problem. and also that it is a significant

violation in the way that the department explained that it is very common to see this level particularly with new businesses and it's significantly over the ambient level. i would at this point without other evidence or any facts contradicting the accuracy of the measure, that was taken i would also vote to uphold the department. >> i'm similarly inclined. i'm very similar anesthetic ig sympathetic to the restaurant owners. i do think this is something and i appreciate the work of the department in protecting the health of the public in this regard, i think noise is something, i mean as i

sat here i'm thinking it would be helpful for me to understand above 11 ambient means and the noise that we are hearing today, i don't know if that's considered ambient, it's more noise than silence and being in your own home and having piece is very important. while the interior test approved to be within the standard, i'm sure that it doesn't mean that as commissioner fong expressed everyone has a different levels and capacity to noise. as a neighborhood restaurant and that's an area where it's obviously nicely developed, i think it's important to recognize that there is going to be variation among your neighbors and their needs. but, yeah, for the reasons expressed by my fellow commissioners and my own view ks i think i would

move to uphold the department and deny the appeal. >> are we going to address any time? >> yes. please. >> again, we would be, because i think we are trying to uphold the standard and protect the long-term sort of ambient noise level that is accumulative contributions, we would be very open to a proposal from the parties for both time to investigate it and time to complete it consistent with their financial means as long as it's reasonable. we would be willing to work in good faith with them. i'm hesitant to specify time. let's say it's 6 months, i will be very comfortable with a time period

like that if that would make you more comfortable. >> i don't know if we need that in the decision. i think we have a representation from the city official on the record that the city and the department is willing to work with at a minimum in good faith a reasonable amount of time to work with the appellant to get into compliance. i think that's fair. so with that, i have a motion to be based on the findsings of the department of health that the noise level is non-compliant and in excess of the noise ordinance. >> thank you. >> we have a motion from the president to uphold the denial of this noise variance and it's

on the basis of the findings in the dph's order. on that motion, commissioner fung, aye, hurtado? aye, lazarus? aye. the vote is 5-0. the denial is upheld. >> thank you. call item no. 6. item 6: appeal no. 12-117 nicholas andrade & james mcdermott, appellanttss vs. zoning administrator, respondent 498 hoffman avenue. appealing a letter of determination dated sept. 17, 2012, addressed to allen sowle, regarding the legal dwelling unit count for the subject property. for rehearing today. public hearing held and closed on nov. 07, 2012. at that time a motion to uphold the letter of determination did not muster sufficient votes to pass and the letter of determination was upheld by operation of law. on dec. 12, 2012, the board voted 5-0 to grant the >> thank you. call item no. 6. sf 61234 we'll begin with the

appellant. >> good evening. my name is alan soul. i'm the attorney. his partner nick an dreadey was unable to be here. they are the owners at the property at 498 hoffman avenue in san francisco. they requested from the administrator to the legal count from their home was three units. to help you understand the situation, i have to take you on a multistep approach. when they purchased their home 16 years ago in 1997 inspected the property. there is two stories above the basement. each of the units is well size

and fourth unit was added by the previous owner and to the basis of the building. due to a water intrusion, they had to completely rebuild the bottom of the basement property and sought a building permit and they found their building was not a three unit building with a unit in the base many but the planning department maintained the unit count was a two unit building with a unit in the base many. if you go back over a hundred years, in the 1900s when this was a farm house. it was originally a large property with multiple square feet on a big piece of land and changed hands over the years but it was first a single family home and later changed into a three family dwelling according to city records. in 1987 the owner of the property, applied to

allow the large piece of property be subdivided into three parts of land. it was given a new legal description. instead of being called lot 11, e. it became lot 32 and 482 hoffman avenue t property next door became lot 31 and in 26th street it became lot 33. usually we don't get involved quibbling about these property description. it was divided into three parcels. the city apparently produced this document for him to sign. i have seen the document but it used an incorrect legal

description. it was recorded against a property located at block 6502, the old legal description. now we step back forward in time when nick and jim are looking for this property to buy, they observe it as three units with a unit down and they make the offer based on that presentation and that visual cited that this is a 3 unit building and they continue as owners and landlords with good tenants for all these years and 16 years later, the planning department says, wait a minute, we have this doiment here that we pulled from our files that someone wrote on the bottom in occurs identify handwriting 498 hoffman avenue that's the only indication in this document that it was a lean against my clients property. i included an

exhibit and one of the exhibits was a title insurance report when they bought this property 16 years ago. there was no indication whatsoever as a notice of special restrictions against this property. my plan was that they were miss informed. i counted four city departments that were miss informed. the department of inspection, even after that notice of special restrictions continue to identify the property as a three family dwelling. it continue up until may 7, 2012 when they issued their latest report identifying the property as three family dwelling, three our more units. as recently as march 28, 2013, just a week ago a work permit was issued, it was once again indicated to be a three family

dwelling. despite this, the planning department feels otherwise. what other departments do we look at? the san francisco and water department says this is a three unit building, the assessors believe this is a three unit building, pg & e installed three unit meters and gas meters, there is two effects of this roen us recording. one is the practical effect. my clients have been tragically denied the value of their purchase and their tents are going to be severely impacted bass somebody has to go if this finding of the planning department is upheld. this is contrary to the san francisco's pledge to try to reduce unit reduction in the city. the

legal effect of recorded of notice of special description with a wrong legal description is the notice is void. after a legal description which is so vague that the document could apply to multiple properties as a matter of law of void because you can't tell which property it pertains to. no one knows who this which property this special restriction applies to. accordingly it was erroneous part of the planning department to base their letter of determination on the document of sighting a wrong legal description and it was an abuse of direction -- discretion and i say those words carefully because i research what criteria does the department use to determine it's discretionary decision. they say we defer to the department of building inspections as a building unit count. the department of building

inspection has consistently said this is a three unit building. for those reasons the board of appeals should over turf and disapprove the issue ance of this planning department. thank you very much. >> so you say the notice of special restriction should be void and you say powell versus bart let? >> it was a deed that could apply to more than one property. >> how so, similar to these facts? >> yes. i haven't researched the actual cases but certainly the decision is that when you have a document that is so void for vagueness that it could apply to multiple properties then it can't apply to any of them. the default is that the restriction are thrown out.

>> i can provide you some information about that if you like. >> that would be great. >> i can't hear you. >> in reading that case, it's a case involving a conveyance of property from we are party to the next. the deed that was involved in the conveyance did have some ambiguity regarding whether or not the parcel was in lot 10 or 9. the court actually and by the way, i will point out that it's different from our conveyance. the court found in that case that it was appropriate to look to the entirety of the deed in the context that the deed was used to determine whether or not the ambiguity of the deed itself could be resolved by the other language in the deed itself and found in that case that in fact there was such language because the house, the two story house that was being sold, that was

being referred to could only have existed on lot 10 and not lot 9. therefore the holding of that case is that you can look at other information in the deed in the context of which the deed is being used to determine whether or not the ambiguity can be resolved. >> thank you, that was very heavily. -- helpful. >> i didn't see it. >> there is actually two. there is one from the purchase time in 1997 and a current one on 2013. >> there is exhibit c. i'm referring to exhibit d which is dated may 8, 2012. present authorized occupancy use. >> i must have skipped over it. i got it. thank you. >> go ahead. so, when your

clients purchased the property, what was the description of the property when it was purchased? >> i understood it was a four unit building. >> then, as a realtor this would be slightly confuse to go me as well because it says clearly that june 30, 1987 to revert to two family dwell and the status as c as completed, yet at the time when you look at item 3, building closed occupancy classic is 3 even though it's an r h 2. >> even after that p g and e hooked up four meters. >> it has nothing to do with the zoning. that's the building department classic. >> so does it mean three units?

>> okay. >> except that exhibit d does say present occupancy. >> anymore questions, commissioner honda? >> no. i'm looking at exhibit i where it says csc dated august 4, 1987 and talks to removing to it the units. occupancy, you included this exhibit for what purpose? >> for completeness. i wanted to complete the information of the process. >> this is the close out that the previous owner took it down to move it from three units to two. maybe it was done and maybe it wasn't. when my

clients bought it there was three units. they haven't made any chance. this would have been as part of the records made available to your clients when they purchased it. the notice and exhibit j that's where you indicate at the top of the document is recorded as using the lot as correct? >> that's correct. >> on that basis the title review did not find any changes? >> the copy of the title report that shows no special restrictions. >> because in the text of this nsr, it's not just the bottom 498 hoffman written by hand but in the actual text too. >> but a title company wouldn't

find that because it was erroneous. in san francisco in 1987 didn't put the correct legal description on the top of this page. >> at one point in time this was the correct property, they switched it when the owner wanted to subdivide his lot into three pieces. >> right. >> this is not an incorrect description. >> it's an old erroneous description. a description that used to be flied to this property and it's not the description that is now or in 1997 when my clients bought the property. then they used the old legal description to record this document. >> i understand your argument. okay. >> and do you have title insurance? it does seem to me

like the title company problem. >> how can that displace the tenants. >> okay. thank you. >> any other questions? >> no. thank you. good evening, members of the board. planning department. the subject property is located within an rh 2 zoning district which is a maximum of two units. which the owner did include a three unit legally. they created one lot and they were going to build two units on each of the

lots with the zoning. in order to allow that condition as an approval of that subdivision they would have to get a permit application to get from 3-2 to comply with the subdivisions. they did seek a building permit to do that, they received a certificate of final completion boo -- by the different building inspections that it had been reduced from 3-2 and that is the final legal notice of the property and there is a description on the property recorded on lot 11 because at the time that was the correct legal description of the lot. this notice of special restriction was prior to the subdivisions of the property. that's the critical element that is missing from the appellant's argument here. at the time it was the correct

legal description of the property. subsequent to that, after the permit was received after they received their final inspection, then they were able in 1987 to apply for building permits to do the new construction on the newly created lots. they bought the property in 1997. there was a report from 1997 which has been pointed out here which showed the building permit with the cfc for two units to reduce from three to two. i don't think it's ambiguous at all. it allows only two units. it cites building occupancy units r 3 which is limited to one or two dwelling units. this report is pretty clear at the time that they purchased the property that the legal use of

the property was as a two unit building. i don't know why they didn't ask more questions at the time. had they requested the building permit history, i believe that attached to the 1997 the permit reduce number of units is in the copy and that's what they found when they pulled the record for the property. had there been adequate research performed by the department, the department doesn't incur the retention of unit. there is no way this unit was created. the appellant has been unable to restore a third unit of the property. if there was a permit to restore a unit that would be invalidly issued and we have the notice of special restriction. i think that is very clear that they

have a good case to get the title insurance for failing to do accurate research. under this theory, there is nothing existed at all prior to the 1987 prior to the subject property. they only went back into ten years of research for a building that was built in 1900 and i don't think there is a full adequate review on their part. there is unfortunately a report currently that says three units and the department's position that is an error and given the last c f c for the property was go units that there is no permit to add a third unit to the property nor could one have been issued wchl that i would respectfully request the board uphold the letter of determination. thank you, i'm available for

questions. >> thank you. i have a question. it is pretty clear that it says it's two family dwellings and that is completed. what happens if the building was never actually reduced down to two units. if it was concurrent pg & e and water passing through that moment of time. does that mean that the subsequent permits that were issued on the adjacent properties in the subdivided would that mean that those were invalidly issued as well? >> that would be correct. it would call upon us to have a great amount of speculation to assume that the work was never done when we have a c f c from the department of building inspection. and they would have verified that the unit was removed.

>> i agree. what happens if the permit holder has facts that the water was never turned off or that pg & e was reduced down to three units. >> the number of legal dwelling units is not tied to the number of the meters or electrical or water. we have different requirements and the requirements is that you have a kitchen and it has to comply with the planning and building codes. i would agree that had that not ever been done, then those other permits for the new construction and subdivisions would be invalidly issued and revoked. >> you are saying for the adjacent subdivided lots. >> thank you for the education. >> thank you. >> commissioners do you want to hear from inspector duffy? >> sure.

>> i would like to agree with everything that mr. sanchez said. i do think the problem definitely is the permit unfortunately the department we just didn't do a great job on this because the permit application has a single family dwelling. the plans for that permit actually have the 87 permit in which we issued for two units and the plans show two units on that. so this permit is the one that has the record up to three units and it's wrong. that's what i see