Matters before the board. Sherry kaiser is here, deputy City Attorney, representing the Environmental Health, and we will be joined by scott sanchez, and representing the Planning Commission and duffy representing the department of building inspection and joined i believe by representative from the department of Public Works Bureau of urban forestry. If you could go over the Board Meeting guidelines and conduct the swearing in process. The board requests that you turn off all phones and pagers so that they will not disturb the proceedings and carry on the conversations in the hallway, the rules of presentation are as follows, each has seven minutes to present their case and three minutes for rebuttals. People affiliated with these parties must include their comments within the 7 or 3minute periods and members of the public who are not affiliated with the parties have up to three minutes each to address the board, but no rebuttals. To assist the board in the accurate preparation of minutes, members of the public who wish for speak on an item are asked but not required to submit a speaker card or a Business Card to the staff when you come up to the podium, speaker cards and pens are available on the left side of the podium, and the board also welcomes your comments and suggestions and there are Customer Satisfaction survey forms on the left side of the podium, if you have questions about requesting a rehearing or schedules, speak to the board staff during the break or after the meeting or call the board office tomorrow morning, it is on 1650 mission street, room 304. This meeting is broadcast live on stgov tv, and cable channel 78 and dvds of this meeting are available for purpose, directly from sfgo. V tv, we will conduct our swearing in process and if you intend to testify at tonights hearing and ask the board to give your testimony evidentiary weight, stand and raise your righthand and say i do after you have been sworn in or affirmed. Any member of the public may speak, without taking this oath, pursuant to the rights under the sunshine ordinance, thank you. [swearing in] thank you. Thank you. President lazarus, and commissioners we have three housekeeping items this evening, the first has to do item 6 which is appeal number 1 4148, this is at 4121, 20th street and the parties have jointly requested that this matter be continued to january 21, 2015, and they are hoping to resolve their dispute without needing to return to the board and wanted more time to allow that process to go forward. But we do need a vote in order to make that happen. Is there any Public Comment on this item . Seeing none, then, if you could call the roll . We have a motion from the president to continue items 6, 14148 to january, 21, 2015, on that motion, commissioner if fung . Aye. And commissioner honda . Aye. Commissioner wilson. Aye. Thank you the vote is 40 and that matters is continued to january 21st. Thank you and similar item 7, which is a jurisdiction request, the parties are also asking that the matter be continued to the next Board Meeting which is december 10th and in settlement discussion and would like time to see if they can work things out themselves. Are you okay with that date . I am okay with that date for two reasons, one is because i think that it likely will not come to the board and second because another case just came off of that calendar. So there is a slot for it. So moved. Okay. Thank you, commissioner. Is there any Public Comment on this item . Seeing none, if you could call the roll, please . On that motion to reschedule items 7, jurisdiction at 271 fair oaks to december 10th, president lazarus . Aye. Commissioner honda. Aye. Commissioner wilson. Aye. Thank you. The vote is 40 and that matter is reschedule to december tenth. Thank you. And then lastly, items 10 abc and which are appeal numbers 14156, they would like to talk to each other and like this matter reschedule to january, 28th, 2015. So moved. Any Public Comment on items ten aband c . Okay, seeing none, if you could call the roll, please. We have a motion from commissioner fung to reschedule, 14156, 59 and 160, to january 28th president lazarus. Aye. Honda. Aye. Wilson. Aye the vote is 40 and all three matters are reschedule for january 28th. Returning to the regular calendar we will call item one which is general Public Comment, this is for anyone who wants to speak on a matter that is not on tonights calendar okay, anything none, item two is commissioner comments and questions. Commissioners . Yes and so our Vice President had to resign due to work conflict. I would like to thank her personally for her time served and sacrifice to this board and i wish her luck in her further and future endeavors. Thank you. Is there any other commissioner comments . Any Public Comment on item two . Okay, seeing none, we will move to item three, which commissioner ss your consideration and possible adoption of the minutes of our november 12, 2014 meeting. Any comments or changes . Additions if not, a motion to approve the minutes as submitted. So moved. Okay, is there Public Comment on the minutes . Seeing none, if you could call the roll . On this motion from commissioner honda to adopt the november, 12, 2014 minutes, commissioner fung . Aye. President lazarus. Aye. Commissioner wilson. Aye. Thank you those minutes are adopted. The vote is 40. Okay. Thank you. We will move on to item four which is peel 14141, Michiko Yamada verses the department of Public Health, 1963 suter street, protesting the issuance to the raos ter tail restaurant of a noise variance, regarding roof top fan noise from a mechanical exhaust system and equipment, the matter was heard on october 8 and continued to tonight allow time for the parties to attempt further settlement negotiations and with the president s consent, we can hear briefly from each party to report back on their efforts. Starting with the appellant. Okay. Good evening, commissioners. I am yamad and at the last hearing you directed us to try to reach a settlement. We made many efforts to settle, we have spent, 10,000 to resolve but we upped our often to 50 percent, raos center tail rejected and never made a Counter Office and refused to discuss a settlement. The noise problem is real, and long standing. Five residents who live above it. You will be hearing from a resident during Public Comment. If you up hold this variance, you are condoning them to comply with the directive to remedy this problem and their strategy of sitting out and doing nothing. They will continue to be noncompliant, and unfairly enjoy the same benefits and privileges as businesses that are code compliant. This is our home. And after three years the noise problem remains unchanged, please over turn this variance. Direct rooster tail to fix their noise problem as soon as possible, thank you. I am charles fall ter and i have been a acoustic deal ner San Francisco for 40 years and we have worked on thousands of noise issues in the city of San Francisco. This is a very unusual one. It is a combination of air born noise violating the noise ordinance, but it is structural noise caused by the buildings are touching each other and so the only solution is to have roosetr tail mitigate a noise in the vibration of their mechanical equipment is what i said in my letter that i sent to you at the end of october. Eric yee of my staff will provide more detail based on his, thank you. Charles mentioned i have been out to 1959 the yamada residence and during my measurements we determined objectively that the noise is a very real and it is very prevalent sound in her unit. We did measurements on the roof as well as in the light well, i know that in the past a dph has said that the light well measurement is discounted because of a 4 and a half foot variance that they cannot measure in 4 and a half feet, i found this to be inconsistent with the department of health as i have witnessed the first happened accounts of them doing the measurements in the 4 and a half feet where it matters most to the person complaining because it is where they are affected by the noise and so i think that a light well measurement is just as viable as a roof top measurement if not more to determine a violation for objective noise and it is as we see, the decibels of a background noise. We can hear from the permit holder now. Is there someone here to speak on behalf of the permit holder . Mr. Bonifel was offering me paperwork, referring to the testimony that was just given and i told him that it would be up to the board to accept it. Okay . Good evening, president lazarus, and commissioners. I am david silver man and i am working with garian on this matter, he has spent more than 8,000 to damen the noise by wrapping it with model lag, piping which is a noise baffling material which was recommended to him by the department of Public Health. He has taken all reasonable and appropriate steps both to comply with the law, and to be expressed the concerns or expressed by the appellant. No one including the consultant has claimed that there is a better material to use than the model lag 10 pipe duct lagging and while many people prefer to live in a silent space which possible, the built up environment does not provide such a luxury, all city dwellers live with some measure of background noise he is in compliance with all applicable laws as confirmed by the City Attorney and the department of Public Health. Mr. Darin has filled all of the duties and obligations both to the city and to the appellant. It is possible that the appellant is more sensitive to noise than the average person. And you know, that is a problem, but i am not sure that it is a problem that can be addressed by mr. Darian it is preperable to resolve these disputes between neighbors by a voluntary mediation or a compromise and a compromise is not necessary possible. Whatever noise there is mitigated by wrapping the duct with insulation, they have determined that one half of the disbell of noise on the roof, cannot be heard by anyone. He is not proposed any mitigation measures to mr. Darian, none at ultimate. His idea was to pay mr. Salsers firm, several thousand dollars to analyze, design and construct something that he was not able to identify. This is an invitation to spend money for its own sake without nephiable end or feasible measure in mind. There was not even a standard that was proposed to be used. He has already indicated what his opinion is in a statement and position contrary to that of an earlier opinion of his firm with respect to the momo restaurant issued on june 24th, we certainly report mr. Salter as well as his professional credentials, but we also recognize that professionals are sometimes asked or expected to serve as advocates. There is nothing wrong with that. But we are not aware of any evidence that would support an opinion that the noise variance had issue here is materially different from the noise variance recently issued to momos. The appellant simply failed to allege any serious basis or justification for reversing the determination of the department of Public Health. And in concluding, i want to salute the City Attorneys office for spending a significant amount of time preparing well researched and well thought out briefs in support of the department of Public Health variance determination. Thank you. The declarations. Your time is up. Thank you very much. Okay, we can hear from the department now. Good evening commissioners. I just want to make a very few small points. First of all, dph has no jurisdiction over the noise in the light well, we just got that last time. Second of all dph might have jurisdiction over indoor noise and in excess of the level in the ordinance but those levels are not exceeded here, so dph does not have jurisdiction over the noise either. Third, dph does have jurisdiction over the noise on the roof, and it granted a variance because no one can hear it. And there is no Public Health effect, which is really dphs and the ordinances central mission. Finally, we dont think that there would be any advantage to Public Health, or even to the appellant, as over turning the noise variance and we dont think that it makes sense to require the permit holder or i am sorry, the variance holder to mitigate the noise that no one can hear. So, i have a question, so on june fourth, 2013, the board, you upheld the dphs denial of the variance. Correct. And then you over turned that again . No. Commissioner. We did not over turn the boards decision to up hold the prior variance. We came to a new conclusion based on additional facts when a variance was requested for a second time. Okay. Thank you. Thank you. Is your sound person here . June wintrof, the head of the noise Regulation Program is here. Okay. Or the person who actually took the measurements previously . There were a number of measurements taken, mr. Peakus who is here last time. He is in the training across the bay and could not attend. Okay. The suggestion to wrap the duct, and then all of the duct came from the department, did it not . No, i dont think that is accurate. Maybe you would like to speak to this, because she was at both of the abatement hearings and she can discuss it with the first hand knowledge. Good evening, i am the acting manager of the noise program, among others for the Environmental Health branch and i can tell you my recollection of what happened at that abatement hearing at which the wrapping of the duct work was discussed. What i believe had happened, was that the consultant to miss yamada had suggested that that might be a mitigation that would help the problem. And we actually tried, we dont just try, we dont make actual recommendations to whoever we are consulting with as to how they need to mitigate a violation. Our job is really just to inform them of a violation. In this case, we had suggested that because we knew that the sound at the roof top could not actually be heard by anybody and we knew that we have the jurisdiction to say you must change that at the roof top. But we didnt feel like that would resolve the problem and so we did take it on kind of a mediation role here and we suggested why dont you see if you can wrap the duct work as her consultants have suggested and if you did that, that we would, and then consider granting a variance, for the roof top news. And so that was what was in our abatement conference, findings and hearing. That mitigation did impact the decision on the variance. Correct. Okay. Were any measurements taken by your department after the duct was wrapped . No, because we had determined taking moss measurements in the light well will not be appropriate and as he explained to you last time, the sound bounces and amplify and so, it would not be accurate representation of the or how the sound is actually potentially moving and being received by the human receptor and so that is why we said just wrap it because there is subjective evidence that that would mitigate the noise problem, but no we didnt feel that taking a measurement in the light well was justified because we knew that the sound was just going to bounce around any way. Any comment on the appellants point that the four and a half feet is contrary to what they have seen in the other jurisdictions . I have been the acting manager of this program for more than a year now. And when i had read that comment in one of the pieces that was presented to us, a. Ly went back. And searched through a number of our records and inspections, and reports, and i also spoke with our old Noise Control officer. And some of our other inspection staff and nobody ha i spoke to could recall a situation where we took measurements in the height well, or where we were taking measurements within four and a half feet of a reflective surface. And an exact, as i stated in my declaration, in this case, the inspectors were reluctant to take that measurement in the light well in the first place. My question was a little bit different than that. And lets say that the other jurisdictions in this general area. Do they have or are those that have a noise ordinance, do they have a similar metric in which they would be able to take measurements or not take measurements . It is very standard language. Our four and a half foot distance, because that is, and it is based on acoustic principles. Okay, thank you. So we can take the Public Comment, could i see a show of hands, how many people plan to speak on this item . Okay. So if you would not mind if you could line up along the far well that well help to move through the Public Comment more efficiently and the first person can come up to speak. The president has given the public two minutes to speak on this item, two minutes each. If you have not filled out a speaker card, it will help out with the preparation of the minutes. Thank you. Good evening, my name is kevin khin and i have known the appellant for many years. I think that their problem is real they is made a good faith effort to reach out to negotiate some type of a mitigation, and they were not responded to after we were directed at the last meeting. So i think that the appellant has made much effort to try to get the negotiated settlement but it was not received by the other party. Thank you. Thank you. Miss ky . Good evening, commissioners. My name is karin ky and i would like to speak to three points that were raised by mr. Silver man, his first point was that perhaps that the appellant is super sensitive overly sensitive to noise. I did visit her apartment between the time of the last hearing and tonight. And i happen to come later in the evening around 9 30 and it just so happened that that at that time, i was there i could hear the fans going, when i arrived. And while we talked, but somewhere in the middle of my visit, the fans went off, and i could palpably feel it, it was like a relief that for me, you may not have ever worn an japanese komono but it is wrapped really tight, because it needs to stay up. And you are tense because of that, you stay erect it is very good for your posture. But when it is taken off, you feel this relief. And that is exactly what i felt when those fans went off. I believe that this is a very palpable and significant noise. And mr. Silver man also stated that this is something that should be resolved through mediation, well mr. Darian has refused to engage in mediation, and finally that this duct was wrapped in that is sufficient, that was addressed at the last hearing by the consultants. That the picture that he was shown and that was relied upon was not a complete picture. And so, to continue to press that point, is disenagain genuous and should not be given credibility i would hope that the board would give some justice to her because her and her neighbors have suffered through this enough. Thank you. Thank you. Next speaker please . Good evening. I am sean obrien and i am a resident and i live above rooster tail and i have the statements signed by my fellow tenants if i could hand those over. I have lived at 1961 for four years now, and rooster tail move in and before that it was a cfe and they had a fan that was not nearly as loud as this is. After they installed their system our apartment shakes and vibrates and anything that we have on the shovels will rattle. And the noise is very audible in our apartment, the light well that we have been talking about it goes through the center of of our apartment and so we are constantly surrounded by it and all of the windows go to the light well and so any sound enters the apartment and has had an impact on our quality of living thank you. Next speaker please . Hi, my name is katrina fork i actually live in the same unit as sean on brine, and i am actually here to present a statement from my upstairs neighbor who could not be here today and so he had emailed this to me. He has lived here a little bit longer than we have. He was also there when the cafe was here. And yeah, sorry. His statement says i hated that place when it first opened our walls rumbled for months after it opened, it is not ases bad now, but it is much worse than before they opened, the worse part about it was how rude and arrogant they behaved when we noticed it, and they completely ignored it and dispared us as if nothing that we said is registering nothing improved in the slightest until the land lady pushed on them to make the changes, that is from eric castro and there is a copy of it in the papers thank you. Thank you. Next speaker, please . Good evening, commissioners. My name is robert rusky and i am a friend and a colleague of miss yamadas 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 dont 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 ones 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, ple