>> good evening, commissioners. my name is robert rusky and i am a friend and a colleague of miss yamada's in japan town planning. and several couple of points. first, following the last hearing on october 8th i was actually invited to her apartment to visit in the evening. and last time that i testified as to her credibility, when she said that there was an oppressive noise in the apartment and now i can testify that it does exists, i don't know what they are using but it does not capture the human experience of living in an apartment with low frequency high pressure sound constantly, in one's ears. and so that is a reality that the department has failed to address in its recent proceedings granting the variance, and second, i understand that one of the

papers was argued to the board that she owes the department a great deal of develop rans and akin to a court reviewing a administrative decision and you are hearing this and anything with the department is owed is only that which is on the other hand on the merits on the case and i would suggest, that to this body, that it is earned very little in this case, and because it is bent over backwards, which is getting to my third point to avoid protecting and a citizen of this city, from unwanted oppressive and avoidable noise. that, and this is indicative of the change in the department policy if the citizens of san francisco i strongly object to that and it seems that the department given its charge should be bending over backwards to help the public. thank you. and i will ask the board or the

body to deny the variance. thank you. >> next speaker, please? >> do they want a copy? >> okay. >> good evening, my name is paul wo rm er and i have been very active in neighborhood activities. in this area for the past 15 years. for affiliation, only and i am currently on the japan task force board and i was previously on the pacific high board and as such, i was frequently involved in both looking at land use issues and involved in negotiations

between the neighbors. the noise issue is something thatvy been concerned about for quite a while. and i believe that there is a proposed compromised solution that will work well for both parties. it is to amended noise variance, that requires rooster tail to upgrade the existing system to include the best practice acoustic isolation which includes the duct work and having that based on analysis and design based on that analysis. just wrapping with duct work without doing analysis is frankly not likely to be very effective and you don't understand what problem you are solving. that requirement should be conditional on the yamada's paying for a substantial portion, i believe that was a point that you made at the last hearing that the offer was not that sufficient. and for the date certain, possibly three months for completing of the work.

as someone was involved in negotiating with the neighbor disputes, i should note that it is extremely difficult to negotiate when one of the parties says that no i am not talking to you and no i am not going to do that and no i have no interest. you can't negotiate then. and frankly going to mediation does not function either, they have no interest in doing anything constructive and i think that is a significant point here. that and the fact that rooster tail implemented the solution without doing an appropriate analysis of the root cause, which feels that they have done enough because they have spent money, thank you. >> is there any other public comment? okay, anything none then the commissioners the matter is submitted. >> well commissioners i guess that we were hoping that we would have some progress on

this. and this does not appear that that has occurred. at a minimum i opened that we could have had a total analysis, and whether it was an air born issue or violation or a combination of the two, i understand that the department. and i am not sure that they have issued a variance and yet accepted the other portions of the code, metrics and in terms of whether the existence of for a valid, measurement, is maintained or not. the question here is not whether for me, it is not

whether the department has the inherent responsibility for dealing with neighbor to neighbor issues. however, i would have thought as a follow up, they should have at least measured the effects of what the mitigation was to be able to include that kind of analysis as part of the variance hearing. the primary issue for me is whoever creates noise needs to be able to control it. and in this case, it is the restaurant owner, who installed the fan. and the adjacent properties, have certain rights, and i don't think that those rights should be infringed upon by someone who is adding something that enhances their own business. i am not supportive of this

variance. and i would have hoped that they would find some way of negotiating a reasonable settlement, rather than have us take such a droconian action. >> assuming that we take. >> assuming there is support. >> i concur with the commissioner fung as the person from the public previously stated. you can't negotiate and come to the table with only one person does come to the table. and hearing from the other tenants that live in the building, it would be really unacceptable to have things vibrate throughout the day all day. if i happened to live there and so i am also not supporting the variance at all. >> any comments? >> this is a tough one for me,

because i completely understand what the city attorney is saying. but it is hard to get around the fact that this woman has lived in this place for so long, and yet did not have this issue until the restaurant came in. >> second restaurant. >> yeah. the second restaurant. >> a huge upgrading of fans. >> the upgrading of the exhaust system. >> yes, i remember that from last time. so i am just struggling with this one. >> but would it help to craft a

motion and... >> sure. >> i will craft it. >> okay. >> i am going to move to over turn the variance decision on the basis that the existing sound levels do not conform to the ordinance, noise ordinance, but i will want to held our final decision pending the issuance of findings and give them one more crack at a potential settlement. >> you are too nice. >> so you are proposing that written signing be adopted at a later meeting?

>> yes. >> okay. >> there it is. >> any comments? >> i am good with it. >> should we call the roll? >> commissioner? >> would you explain that a little bit more? >> yeah, a little bit. >> yes, we could take a decision tonight, and at which point the departmental our departmental staff will issue a final determination based upon what we indicate as our findings. i am saying that we are going to put off the issuance of the final decision pending written findings and in the hopes that the two groups can get together and craft a settlement. >> and so commissioner wilson, the procedure will be for the, and for the written findings to be prepared and brought back to the board for a final vote. >> and the board's decision is not final, until those findings are adopted by the board.

and the findings are an explanation of the board's position on the motion that commissioner fung proposed. >> you have a promise for your. and how much time are we talking about? >> because this has been going on a long time and so i am concerned that... >> well i appreciate the opportunity... >> we did not specify a time when the findings can come back in a couple of weeks. >> madam president? and am i ask for a point of clarification, my understanding is that the variance pertains to a half a decibel of noise on the roof. >> is this a procedural question, counselor? >> yes. i am trying to get clarification on what you are looking for because i am not sure that the dph wants anything done on the roof. so i am just want to make sure that i understand what you are

asking for. >> i was not asking for anything, i was hoping that the two parties could ascertain exactly what the issue is. and therefore, craft some type of a settlement between the two parties, before we issue or over turn, if there is enough votes to over turn a variance and leave it at that. >> well, the, the appeal is and it has to do with the issuance of the variance and the appeal is not regarding a general noise complaint of the property. that is something that would be in a superior court. and a noise a complaint for a nuisance. and based on noise, but we are here for, an appeal... >> my motion relates to the variance. >> okay. >> i also have a procedural question. when you say you are looking

for findings, are those findings from the department or are those findings from the two sides trying to work out a negotiation? >> the findings from our department. >> our department. >> from your department. >> okay. and so, we would be in a position to have to work with your department in order to provide them the necessary information to provide those findings? >> if you disagree with our findings, yes. >> got it. >> thank you. >> you looked puzzled. >> could i explain further >> that is what happens when you have a new kid on the block. >> that is quite all right. >> it says and again, it is some what procedural, and it in a way that sends a signal that

we like more possibly done, but if not, >> once again, and the findings. >> yeah. >> give it one more shot before we make a decision. >> okay, as long as it is a limited time period. >> yes, i think that is understood. >> the motion? >> i would amend the motion to for findings to come back within three weeks. on december tenth? >> yes. >> shall we call the roll on that? >> there is a motion from commissioner fung to grant this appeal over turn this noise variance and it is on the basis that the existing sound levels do not conform to the noise ordinance, with the adoption of findings, on at a later time which is december 10th. >> on that motion to over turn,

president lazarus? >> aye. >> commissioner honda. >> aye. >> and commissioner wilson. >> aye. >> thank you, the vote is 4-0. this variance is over turned with the adoption of findings on december tenth. >> okay, and we will move on to then item five, 14-157, the property at 5525 diamond heights boulevard and appealing the denial on september 3, of a tree removal permit, and the denial for request of removal with the replacement of one dpw maintained street tree. we will start with the appellant. >> miss louie? is she in the room or her representative? okay. we will wait for her to get up

to the microphone.

>> my name is lily loui and i am in the 80-year-old, and in the past two years i have suffered from a major stroke and a hip fracture and i also have hypertension and i am afraid of this tree in front of my house constantly in my dreams my cause me to have another stroke. i have prepared the sidewalk many times because the roots of my tree and my neighbor's tree erupted through the tile. the city was responsible to repair the tree. i wish that my husband judge louie of the superior court

will be present to for my case and perhaps, also the policies of the city. i have a tree and in front of the house that i wish to have removed but, because of my neighbor, rejected. and the city approved my cutting the tree and then, it was the neighbor next, and the diamond heights disapproved and proved tested. and there was a hearing held and again, the city approved the removal of a tree and i went to so much trouble going to this hearing. i issued a very important ceremony at my church because i had trouble getting out of the door building because the man at the entrance was closed.

on van ness street, and when i had to catch a bus to go to church, i was made a lot of he effort to go to the hearing but mr. buffet did not show up at the hearing. but sent the diamond heights association to it. i thought it was well worth it coming because i got approved, and approval to remove a tree, at that time. and in june, however, the diamond heights association apply for another appeal. but, later withdrew it because the urban decides forestry, decided not to remove the tree. because of what they said, i felt this was very unfair. and i was told that i had to go

to make an appeal for and pay $100. for having it cut down and in person, by having to go on person, and i had trouble crossing that dangerous intersection, by the foot of van ness. and the muni bus and we had a community bus. and in addition to this said bus, or the diamond heights policy should be changed many friends agree with me that the tree in front of your house should have the owner say so, and not the public. the second policy, is that the diamond heights approved the removal of the tree, the public should not have the opportunity to disapprove it. out of all of the trees in

diamond heights, i think my tree is the first and the only one to have (inaudible) into it and as i was talking to them a para transit driver, and a former plumber and says that the tree roots interfere with the plumbing. and they usually cannot be fixed as they repair the sidewalk i told them that i want to cut all of the roots out. and he replied, lady, that is not a root, it is a pipe, a pipe that is still right, maybe a foot away, and in the where the tree is. and i didn't think anything of it at the time. but after i talked to that driver, he got to thinking, maybe the roots will cause problems. the church at the corner of

my... notified me that it was having problems with the plumbing because of roots from the tree. and then they sent the neighbors, and the neighbors a letter saying there was still problems with the plumbing. they had after a year of fixing the plumbing. they were still having problems and they cannot fix it correctly. and the wind is so strong in diamond heights, i had to hitch hike to call 4 houses over even though it was very dangerous. and i am sorry, i am not that well prepared because i can't write very fast. and i just got this letter from

the department of public works today. telling me why they are not going to cut the tree. they didn't send me... they just sent me a post card saying, that the tree will not be removed. and you protest it, you have to go in person to protest it. i don't think that is very fair. any way, my friend who comes to receive light from me belongs to a spiritualization that gives light to (inaudible). (inaudible) is organized organization in partnership with them as an international community service organization, for years we went to the un to

give light and energy too. any way, he... this person, helps me clean the leaves off of ground, but when i rake the leaves it is very difficult to one time i raked the leaves and the very next day, the leaves are covered on the ground, and i hope that i can replace the tree with one that is not so evasive and it was shed fewer leaves. one of the houses across the street have no tree, but, my block has all of the trees. but, why, why can't they plant a tree over there and leave me alone? i talked to the para transit bus a few times a week and they are so tall they can knock the branches and cause a accident. >> mrs. louie.

>> we have a limited amount of time that you are allowed to speak and you will have additional time after the other parties have addressed the issue. >> i have a... i can talk later? >> yes, you will have another three minutes. >> thank you. >> i am chris buck with the department of urban forestry and we had received several calls from the property owner over a couple of years for the sidewalk damage caused by one

dpw maintained street tree adjacent to her property and it did take a couple of years to make those repairs. so we did receive a number of requests. those repairs were made in 2013. and a few months afterwards we continued to get phone calls from miss louie, the property owner about the concerns about the tree in general, and the lean of the tree, the leaf litter and the leaf drop and also, just a concern about having a tree with a lean directly opposite the doorway. after receiving many calls, urban forestry staff was understandable sympathetic to the property owner's desire to have the tree removed it was a difficult decision, but the staff level we did initiate the removal of this tree, during that posting period, it was protested by at least 2 neighbors, and the matter had to be schedule for a dpw tree hearing. and the department assessment

after the hearing was to deny the request to remove the tree. we really wanted to focus on the structural condition of the tree. the merits of the over all health of the tree. and although we completely understand the property owner's desire to remove the tree, we just felt that the standards for removal it not been met and so the decision was issued to deny the request to remove the tree and just a few photos and they are black and white. i apologize for that. there is a slight lean to the tree, and at that point, it is just aesthetic and it is not a structural safety concern. >> and the sidewalk repair, this is what the sidewalk how it appeared in march of 2011. so it is a little difficult to make that out but you can see

that there is some sidewalks, where it has been raise and damaged by the tree roots. and then, early in 2013, the sidewalk repairs were made, and this is how the sidewalk and site appears today. the department requests that the board up hold our decision to deny the removal of the tree. >> so you were going to remove the tree the first time. and what was that based on? >> based on the fact that it took us a couple of years to make the sidewalk repair. and it is the narrow sidewalk, and so the species tends to damage the sidewalk and we do have a row of similar species up and down that side of diamond heights boulevard. but, the fact that the tree itself is directly opposite of the doorway which is not typically a concern, but the fact that it has a lean it was more of an aesthetic i would say sympathizing with the property owner if they wanted to come in and out of their house every day and have a straight tree without a lean there was a concern that

someone may potentially hit their head if they were to come in and out and so passing from the sidewalk to the road. the lean is not in the path of travel, the main pedestrian through zone on the sidewalk but if someone were to walk directly next to the tree, we are concerned that well could someone hit their head that way, but in our reassessment that really was not a potential safety factor. >> when you say reassessment, what did do you exactly? >> well, sure, when it was protested by the public we received several letters including another arborist report from the community and looking at that, you are essentially going through the reasoning, and pointed out that we were not stating that it was a structural stability issue with the tree. but the lean of the tree, and the trunk of the tree was damaged many years ago through some type of beg your pardoned, or wind or being struck by a car, the tree itself has

corrected the lean for ten years and now growing up right and so they just really pointed out that the structurally there is not a lot wrong with the tree. it is a light lean. and that is really aesthetic at best. and when we reviewed that we realized that really the department to be consistent with the similar cases we really tried to focus on the health of the tree. although, understandable sometimes we let the customers cloud our better judgment and i mean that we are human and so sometimes we do feel for the property owners, and so the original decision of the staff level was to approve the tree for removal. and ultimately it was denied for removal by the department. >> do you have any concerns about the safety-the tree? >> at this time, our department does not have any saefl concerns about the tree. we have made the repairs and we really hope to stay on top of the repairs and we do have a sidewalk repair program that