vice president goh: i am going to vote no. i am torn. if my vote does not make a difference, i am going to vote no. >> the vote is 3-2. the permit is upheld. president peterson: >> welcome back to the december 15, 2010, meeting of the board of appeals, the last meeting of this board for this year. mr. pacheco, could you call item no. 6, please? secretary pacheco: item number six, appeal number 10-076, raymond berrios vs. the department of building inspection, 750 andover street, protesting the issuance on july 2, 2010, to jose berrios, and electrical permit. >> please step forward. you have three minutes, sir. >> good evening, commissioners. i and the aged and architect for the permit holder, the legal property owner of the residence at 750 andover. the last time that we left, you requested three items. one is that we performed a sound reading at the site, which we have done. the second item was to possibly study alternative locations for the compressor unit, which was at the time located below the bedroom window of the tenant who filed

vice president goh: what about removal? >> as as taking it out and not putting another one in approve a permit is required to remove the fixture such that it is not being replaced. vice president goh: thinks. commissioner garcia: mr. kornfield, did you have a chance to read these? >> i read them, but not thoroughly. vice president goh: item four, written by the deputy city attorney gessner, it makes one wonder that in ordinary circumstances, if someone comes before this board and files the jurisdiction, would this normally caused a permit to be suspended? >> no. if there is a request, we do not suspend the permit. we do not suspended -- suspended. that means all construction activity, it is allowed to take place during that period. vice president goh: -- commissioner garcia: the hearing itself was on the 30th. is this important in terms of a suspension should have been issued? >> >> the hearing on the 30 it was for the jurisdiction request. vice president goh: commissioner garcia: -- at that time, it was already issued? i t

-- vice president goh and others. we also have secretary pache co, scott sanchez, the zoning administrator, laurence kornfield, carla short, with the department of urban forestry. at this time, mr. pacheco, if you could go over the guidelines? >> the board asks that you turn off all of your cell phones said they do not disturb the proceedings. please carry on all conversations in the hallway. each have seven minutes to present their cases and three minutes for a bottle. people affiliated with these parties must conclude their comments within the three-minute or seven-minute period. those not affiliated have up to three minutes each to address the board no rebuttal. to assist the board in the accurate presentation of minutes, members of the public wishing to speak on an item are asked but not required to submit a speaker card or a business card to board staff when you come up to the lectern. speaker cards and pans are available to the left side of the podium behind the board also welcomes your comments and questions. t

vice president goh: i have a question for mr. kornfield. commissioner fung had asked last time what are the permits that are needed for this kind of a thing. i think the question about permits might have been directed -- >> i can give you my opinion at the moment, if you like. there are the electrical permits to provide electrical service, in this involves the equipment itself in the backyard. -- and this involves the equipment itself. i know it is a large and heavy piece of equipment. i would not consider it to be a serious safety hazard. typically, notwithstanding outside of this case, other than the letter of system, i cannot actually imagine that we would require a building permit for the compressor itself. if it was in a location where it might block an exit or cause a hazardous condition, perhaps we would consider that, but the foundation itself is not a structural issue. i just do not think that this rises to a level -- it is not specifically exempts either. vice president goh: at the last hearing, and maybe this came from mr. sanche

vice president goh: thanks. vice president goh: i have a question about the 19th. we have other items to be heard, as well. how many? 6, 7, 8? >> yes, there will be election of officers. commissioner garcia: that usually takes five minutes. >> oh this is to continue it until january 19 with some briefing and some exhibits allowed. i think we should specify how many pages you are interested in seeing and exactly what topics you want to see it on, and my recommendation is that both parties to submit the thursday prior, as opposed to having rebuttal. commissioner fung: commissioners, since i personally feel that all information has already been submitted, i would like the briefing to be 3 pages. vice president goh: i was going to suggest one page with unlimited exhibits. commissioner fung: 3 pages total. commissioner garcia: you cannot limit that. commissioner hwang: i like the one page. just summarize it. >> one page a briefing, and limited exhibits, but all parties submit the thursday prior to the hearing on january 19. and the subject matter of the briefing? the su

vice president goh: i am going to vote no. i am torn. if my vote does not make a difference, i am going to vote no. >> the vote is 3-2. the permit is upheld. president peterson: let us take a short break.

vice president goh: ok, thank you. commissioner garcia: mr. kornfield, is it your opinion that this board should consider the effects of noise on neighbors and tenants? >> i think that is a legitimate concern for the board, and i say that because the building code since 1974 has addressed noise concern for individual -- for residential units. noise concerns have to be addressed to reduce outside noise, between us, as well, so i think it is in the legitimate code issue, one that would be legitimately be before the board, in my you personally. commissioner garcia: maybe this is not a question for you, but if this individual is a tenant and had some legitimate lease, although the true owner of the building could get a permit to put this compressor in that portion of the property that is under lease, by this tenant, is that -- >> that, i cannot answer about who's right. commissioner garcia: i guess the better way to ask this is it seems we have had issues before the board whereby no one can get a permit on someone else's property, and as a lessee,

vice president goh: i have a question. what is the average life expectancy of this type of elm? >> i am going to dodge that question as i often do by saying that city trees -- urban trees have a very different life expectancy than do trees in their native habitat. i would say chinese elms are probably more likely to fail or have root problems than to die of old age. this canker affects them, particularly the older varieties that are not resistant. that contributes. they do not die of old age very often. vice president goh: one of the speakers mentioned a different species planted already. what is the expectation with regard to coordinating? >> there are a number of species already on the block. the homes are on the block along with some cherry, london plain tree, tulip tree, and others. the replacement tree was actually a requirement of a building project. that was not replanted by the city. that was planted by the property owner as a condition of their permit. president peterson: i know you addressed ph

vice president goh: i have a question for you, sir. did i hear you that when they turned the compressor on is when they were doing the ambien to? >> last thursday, it was on for two minutes, but they were supposedly taking readings, but that information was not provided. vice president goh: i have a question for the permit holder? >> please step forward. vice president goh: did you have the test with the compressor test on -- with the compressor on? >> i just did a reading. commissioner garcia: and you might include in your brief the manufacture ratings. >> sure, i can do that. commissioner garcia: think you. president peterson: i would like to hear about ways we can get a representative at the time of the testing. this is so that each party can look at the rating. vice president goh: is there a motion on the table? that they did the test and that the numbers were not good, and then we did not hear about it, jimmy, that suggests that there is no reason for us to continue this. we gave them a chance. we asked for it very explicitly. the

vice president goh: ok. president peterson: so we can do some additional research on that, commissioners. commissioner garcia: for the reasons mentioned by secretary pacheco, vincent, i would not want to do that. >> it is not clear about the question of the ministry of exhaustion. i do not think there has been an opinion, for example, about whether that is required. i can get back to you on that. they are not necessarily wrong, but it is not a determination that the city attorney has been doing. commissioner garcia: i think it was stated affirmatively that it was not needed. >> i am not aware, but i can look into it. secretary pacheco: over the years, the opinions have changed. president peterson: so moving on, section 9 clarify this jurisdictional requests and sets up the standing for granting such requests, and it does list the time that a successful requester would have for an appeal. i am looking at the rules that were distributed in your packets. commissioner garcia: this is what you are talking about.

vice president goh: i had a question. if they have approved this, it must be correct, but i had the impression that the tenant was female. >> there was no disagreement to the gender of the tenant. commissioner fung: i think you were right. commissioner garcia: it was a male? i thought it was a female. president peterson: may be in the findings we can have it neutral. >> the name is confusing. it is a foreign name. president peterson: i will move to adopt the findings. is there any public comment on the findings? seeing none, please call the roll. >> the motion is to adopt with no changes. on that motion from the president to adopt those findings -- commissioner fung: aye. vice president goh: aye. commissioner garcia: aye. commissioner hwang: aye. >> the vote is 5-0 to adopt those findings. >> before we move on to the next item, i would ask ms. young if you could step forward briefly. i want to make sure if those here who need translation services understand we have the headsets available. do you have them with you? if you

vice president goh: i have some other questions. the 25 by 69 foot lot was divided -- was separated from the other lot. is that right? >> i would assume so. it was not a recent lot split. it goes back to the 70's. i did not see any indication about a subdivision or variance. that would have been required because the lot is less than the required size. it occurs further back. vice president goh: we have had this issue come up before someone is trying to cram a full-size two units into substandard lot. what is the zoning administrator's position on doing that? >> i think if it can be done in a way that accommodates residential design guidelines it would accommodate the past practice where we are doing a variance but may place restriction on the number of lots that can be developed. but i did not find any such restriction on this property. vice president goh: thank you. commissioner garcia: ms. meyers and ms. lee raised the issue of section 121 and the number of square feet you can have -- the number of units you can have given a certa

vice president goh: no. commissioner garcia: no. president peterson: aye. commissioner hwang: aye. >> 3-2, that remains on next week's calendar. president peterson: if you could give multiple copies to our board office? thank you. commissioner garcia: i worry about the future. president peterson: we are ready to move on. please call item 5a. >> calling item 5a, multiple jurisdiction requests. the subject property at 171 lee avenue. we have an attorney letter asking that the board to jurisdiction over 2 you will permit applications which were issued on november 16, 2009, and december 30, 2009. the appeal period ended, and the permit holder is chio leng cheong. >> lawrence cornfield, department of building inspection. -- kornfield. i had the chance to speak with the building older and appellate about this complex problem. there is a problem because the plants showed that the windows being proposed are 3 feet from the property line, which is ok. but there was a service provided in the appellant's documents that shows it is part of the building that is closer t

vice president goh: i agree with commissioner fung. president peterson: i am inclined to uphold the variance this evening but address some of the concerns with the size during the building permit process. commissioner garcia: i tend to agree with that. i somewhat disagree with the findings. one stems from the other. it doesn't -- it does seem there are severe restrictions to this particular lot. someone suggested the couple should have gone out and done due diligence. i do not know that city processes run themselves to that. you cannot go and say, "what can i do that is" complian code comd then cancel it out. it almost seemed as though the people that sold the property was offering a decision. if your plans do not work out, we will make you whole. anyway, we do not need to because property values have appreciated. i do not think property values have appreciated too much in san francisco. i think as stated before by president peterson, it will be interesting to see what happens when that process goes through. i think it reasonable case

vice president goh: next week is the adoption of findings. commissioner fung: i will amend my motion. my motion will be to continue to accept the documents and maintained a hearing until next week. vice president goh: commissioner fung, i guess i was inclined to allow out to the continuance until january and allow them time to respond for fairness reasons. i think it is unfair to allow her to respond in writing. i am inclined to support a continuance under these terms. >> commissioners, shall we call the motion? president peterson: call the vote. >> commissioner fung, the motion is to continue this matter until next week to allow the distribution of permit holdersubmittals to the board with note submission by the appellate? commissioner fung: i believe my motion was to accept additional information provided by the permit holder, and we will accept any response to that information by the appellant and to maintain the schedule the hearing on adoption of findings for december 15. commissioner hwang: a question, when was the e-mail that you refer

vice president goh: okay, thank you. vice president goh: -- commissioner hwang: mr. sanchez, in your reply, this submission, dated november 4, it references planning code section 790.116. you excerpt it here. anyway, right before the conclusion, you reference this multiple times, about the definition of personal service. do you have whole colt -- the whole code section? >> yeah, sure. this will take a second. to have the overhead, please? the definition, personal service, retail use efinition, l service, retail use which provides services to the individual, including salons, cosmetic services, tattoo parlors, and health spas, or art, dance, exercise, martial arts, and music classes. that is where we felt both of those centers were both best classified under that section. tha commissioner hwang: okay, thk you. president peterson: as commissioner garcia mentioned, he had to leave the meeting. when it comes time to vote on this item, it commissioner garcia's vote would make a difference in the outcome of the item, the item will be continued to allow his participation in

vice president goh: at the hearing,. it commissioner hwang: at the hearing, your client was present? >> i believe so. commissioner hwang: so when allegations were raised, why was that not addressed at the hearing? o>> as a matter of fact, that was addressed. there was a commissioner who asked the question, was there any permit-related work done prior to the permit received. he emphatically said no, on the record. at second, first of all, bay drugs was not represented by counsel at the october hearing. they also brought a contractor to the hearing and presented that to the board and invited the board to ask any questions of the contractor they may have. there were no questions. you have to remember at that time, i believe the permit holder only had seven minutes to present his case. before that the findings, we did not know what the board was going to focus on. so within the limited amount of time of 7 minutes, there were only so many things that one could address. commissioner hwang: the allocation of these un-permit it

vice president goh: i am sorry. i did not follow. >> you are asking mta would have an opportunity to submit a long response? commissioner fung: they could do the verification they do on everything else. commissioner garcia: we're going to continue this and hope that either sfmta and the appellant -- more week to request or to find that we want this individual placed a new on the list, such that if he were to be heard in 2011 he would have the potential to get a medallion. what that would demonstrate, what the way bills would demonstrate to this board, or at least to me, because it would not be of interest to others -- we know that his claim was that he had a fire and things got stolen. if he could come up with waybills that show that, he would absolutely qualify for a medallion. that is what we are trying to do. so the issue is to continue, and how far out in order to hopefully produce this information. it seems as though they have the power to tell him to produce the documents. has there been a motion? i guess the

vice president goh: a 24 inch blocks -- 24 inch box tends to be 5 feet or so? >> depending on the species, i would say more like 8 feet tall. the trunk dynameter in an l. might be as much as -- in an elm might be as much as 2 inches in a 24 inch box. i have 25, 30, 24. president peterson: the timetable you said for your department is really quick -- is that because of the condition of these trees? >> it is a recognition that we are in the storm season and the condition of the trees. but also we would want to move forward and try to get the replacements as quickly as possible. we recognize the impact to the neighborhood. we would try to minimize that as much as possible. president peterson: thank you. >> is there public comment on this item? please step forward. if there are several people who wish to speak, if you would not mind lining up against the wall, that will help move the proceeding forward. thank you. >> i am rebecca rourke. i have lived on that neighborhood -- in that neighborhood on the block for most of my life. i love those trees. i have to trees i

vice president goh: i would agree with commissioner fung. the standard is very high -- manifest injustice or new facts. we heard the facts of the tree coming down and miss troo beingr steroids -- of the tree coming down and misrepresentations with regards to the board being forced to words -- being poor stewards of the land. i say that reluctantly because i voted against the variance. president peterson: -- commissioner hwang: i appreciate the clarification on the possible topography changes. it is always a concern. you try to predict the future. it was one of the factors. it is still have practical. i think listening to the standards we have, i would vote to uphold the variance. president peterson: i have nothing but to echo the comments of my fellow commissioners. i move to deny this rehearing request. >> >> on the motion to denied a hearing request. commissioner fung: aye. commissioner goh: aye. commissioner garcia: aye. president peterson: aye. >> the request is denied. president peterson: item 53, please. -- 5e, please. >> a jurisdictio