operating food delivery services in an industrial area. they have been doing that for decades. along comes a residential building built right next door against the food bank and raises concerns about a noise violation. the noise standard was not intended to address industrial zones and that's why we grand the variance in that case. >> you understand the question is the system of the variance implied is a flexible standard not an absolute other side we would have no variance. >> we would grant a variance in -- let me give you an example. if let's say there was a restaurant at the edge of ocean

beach in golden gate park. clearly there is nobody nearby to affect. i think that would be a situation where i would consider it. if the equipment for example was if there was a new hospital and there was no way, no feasible way for it to install equipment that would be in compliance and would be serving a public function. i would consider that too. i think there are circumstances, but in the situation of a restaurant in a residential area. i would ask them to uphold the standard. >> okay. thank you. >> thank you. we can take public comment, is there any member of the public who wishes to speak on this item. please item forward. good evening

commissioners. i live next door to the restaurant. my family has owned the building for 27 years. i have been living here for the past 7 years. my parents owned a small japanese store in this neighborhood for 36 years. this is the first time that we are in dispute with a neighbor. rooster tail restaurant ventilation fan was installed in december and since it's installation it's been a nuisance. this fan is on continually seven days a week.

the department of public health and charles associates, an acoustical engineering company, confirm that this fan is over the noise ordinance. there are documented noise measurements to validate this. the san francisco noise ordinance was put into place for the safety and health and well being of all san franciscans. asking to comply with this ordinance is not an unreasonable request. since this affects our quality of life and right to live in our homes. please ensure they comply with the noise ordinance as soon as possible. please help us to resolve and remedy the harm that is being done for the well being and health of our famous families and

neighborhoods and community. thank you very much. >> thank you. next speaker, please. >> good evening commissioners. i have worked and known the yamda family for many years and they are good neighbors and good landlords. i think the noise is a bother to them. they have done what they could. they have replaced their own windows to try to mitigate it. it has not helped. we don't see any reason why that variance should be granted to allow them to exceed the noise levels especially when there is ways for it to be mitigated. we hope

that you can deny this appeal. thank you. >> any other public comment? seeing none then we'll start with our rebuttal. you have three minutes. >> i just want to point out that we are in a mixed use neighborhood and back to the application for a noise variance, if there was no leeway why was i asked to submit an application for a noise variance. that's all i have. >> the question i think i know the answer. the fan must be on continuously while the restaurant is operating? >> 11:30 is wrong. we don't even have people. it is from 8:30 we are done between 10 and

10:30 >> the fan is for kitchen heat. it extracts any buildup of hot air and for safety. we turn on the fan from 8:30. by 10:30 the restaurant is pretty much done. so those are the operating hours. any other questions? >> thank you. >> all right. so, i just want to sort of -- i think that the restaurant feels they have been getting some different signals from staff to and i want to address that. i think that's

unfortunate. i'm a doctor and when i was practicing medicine i was very interested in making my patient happy in addressing their needs. i think the restaurant inspectors really go out of their way to try to meet the needs of the restaurant owners to try to make things work. that's the attitude i think of our department. so, i would very much like to -- encourage, we do not want to undermine the standard we spent a lot of time, we gave an additional three decibels for commercial spaces when we were setting up the standard, if we say one, why not two, and if we add three, why not four. i think it's very important for to us maintain the standard particularly because it's doable and feasible. what we need to be doing better is making sure that every branch of the city knows that they

need to be alerting the businesses to take care of this problem. i think at this point we would like you to uphold our judgment which is just an objective sort of evaluation of the standards in upholding the city's noise law but we would like to give the responsible party some time maybe they can look, they can get another acoustical consultant to see how they can manage the noise. i don't want them to spend a lot of money on consultants. maybe a n acoustical consultant can create a more feasible alternative. we can give them the time to do that investigation and give them the time to come in compliance in

good faith with us. >> what do you consider reasonable time to explore options? >> when we took the measurement in december we issued a directive based on that measurement giving them 30 days to give us a plan. the 30 days was for them to give us a plan and based on what they are doing they may need to get permits, etc, we would give them the amount of time they would need to address it. >> one last question. in your experience, what's been the worst noise level violation and conversely the most significant that you have seen? >> i'm not quite sure what you mean. this is about the range of what we are seeing. we see

this with basically new businesses coming in or remodels. they are updating their equipment. maybe they are putting in equipment with a greater capacity but they are creating these unintended consequences. we've seen above 10-15 above the ambient. because the noise varies so much between the morning and night we see the problem with restaurants that are operate ing in the evening. we see the problem with food markets in the morning with sort of delivery equipment, conveyors. to give you on the other end, we had a complainant who was

driving a lot of inspections. she was having us do inspections every month where the noise level was 6. it's a restaurant. she said it should be treated as a residential building. we argued back and said no, this is a commercial use createing the noise and the law allowed 8 decibels. we do get what's audible to people 3-4. when you are talking 11 decibels over the ambient. you are 16 times more sound energy. right. it's a log rhythmic

scale. >> i have a question too because we've had quite a bit of sound cases before us in the last several weeks. so, is that sound subsonic or just audible? >> it audible. we measure sound in the a range which is the audible range. the range we are accustomed to hearing and that has purpose. if it were dolphin sound we wouldn't have a law against it unless we had dolphins. >> what was the proposed fix? >> the department doesn't specify the mechanism of fixing the problem. we believe a small sound wall would be constructed around the roof, i would defer to the responsible

party. there may be other approaches. there may be to deal with this problem with someone thinking creatively about the ventilation needs and other ways to meet them. maybe this is the most cost-efficient proposal, given the investments 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