stacy did review this memo, it seemed to meit seemed to me thaa continuance was to receive the information with the possibility of having a vote based on addressing the information that was added to the record, that that did not preclude addressing alternatives. on the other hand, if what you did was turned down the project in a way that it cannot be revisited at a subsequent hearing without starting the process over, i totally agree with miss hester that you don't study alternatives when you basically have refused to certify eir and some final way. i guess i'm asking for clarification from the city

attorney, but my understanding of the memo was in doing to continuance action, you were leaving the door open for revisiting the question of certification based on the adequacy of the information we supplied. commissioner antonini: well, thank you. i kind of agree with the fact that what i was hearing was there should be alternatives analyzed, rather than the adequacy of the analysis itself, although there were comments both ways. i feel this is a continuing discussion, in my mind, of this my main pois more of a thing for significance for future projects, but i guess the scope of analysis. if you had 820-story residential building and somebody in the public wanted five stories commercial or 30 story commercial building, or even another commissioner, it would seem like he would not have to analyze something that is so far away from what the project

itself is. i guess that is where the line has to be decided, but maybe that is something that has to come out of whatever the state ceqa law dictates. am i think the issue is whether the alternative range -- >> i think the issue is whether the alternative range, at this hearing or another, even if there is not act -- ceqa impact, but the range is not broad enough, my opinion is that it is appropriate to raise. it is obviously easiest to address that the earlier that it comes. it is much harder to address that particular answer because it makes the timing of it awkward. if point, he cannot act affirmatively. commissioner antonini: thank

you. president miguel: commissioner sugaya? commissioner sugaya: for me, it is fairly clear. it does not seem unambiguous to me. we took action to unite certification. that could have stood by itself. i don't know what happens then. the project sponsor goes back in redesigns the project, does the whole eir all over, whatever happens. but then we took action to continue it. the reason i thought we were continuing it was for nea to evaluate all the kinds of things that people testified or inadequacies in the final eir, the final eir being the final comments and responses document together with the final eir. we went through that list. i listened to the tape, have those written down. i don't want to go through it. i don't know if miss hester is

correct. i don't want to negotiate the alternatives that were discussed. i think it is clear what the alternatives were that were discussed by listening to the tape. i would just mention one, which was the alternative re- examining the re-use of the power itself. there were a number of issues about a whole issue of demolition and how that came to be without any analysis of the ir -- of the eir, and that is one aspect, the other aspect could have been even if that was considered, there was not an offended if -- there was not an alternative that looked at the reuse of that building. it could be reused, which calls into question the entire analysis and the eir itself. that testimony went to the ceiling heights of the building, which we were led to understand were too short, the

configuration of the structural elements, which we were shown on the floor plan that there could be workable units in the building, etc. all of that led me to believe there should be an alternative that looked at, for example, the reuse of the tower. that to me is clear from the testimony. i don't think we need to revisit it here. to me, the continuance was solely to look at these issues and not continue to talk about what it is that this re- evaluation is going to address. it seems to me that was already discussed at the hearing we previously had. president miguel: commissioner olague? vice president olague: i guess i am a little bit -- i think this calls into question the role of the commission as it relates to the certification of an eir or not. it was clear to me that we did

not approve it, that we did not certify the eir. i think what is happening now, basically the staff is refuting the decision of the commission. i don't feel comfortable with that. i don't know of any time in the past six years i have been here that we have denied an eir that there has been a motion to continue. i was under the impression -- i did not support the motion to continue. i was under the impression, like commissioner sugaya, it was to bring back certain issues the public made. i did not think we would be continuing it to reconsider whether we would be certified this environmental impact report. at some point, i would like the city attorney to sit with us, to sit with me, to clarify the role of the commission as it relates to our role in certify or not an eir.

i was very comfortable with the comments of commissioner sugaya and moore as they challenge the content and whether or not the eir was adequate. i have never seen anything like this, or this debate ensues about -- where this debate ensues about the opinions of commissioners as it relates to any eir. we went through this with several other eir's that we approved or disapproved or we have had certain challenges, and it has never been that we get this -- i know that one commissioner may have requested something like this, but i just think this is going outside of the process i am familiar with, as it relates to our role. >> i think commissioner sugaya described it correctly, you took action to deny this eir, but then you also took action to continue it.

there was a 4-2 vote to continue until january. there was a vote. if you did not want to reconsider the eir, what was the point to continue? vice president olague: i did not vote to support that motion. >> the commission voted 4-2 to continue the eir. if as commissioner sugaya8d0z suggested it was to have additional analysis done, then staff can only conclude this purpose was to consider the eir again. what other purpose would there be to continue it? vice president olague: and i think also -- well, ok. that is fine print -- that is fine. i did not understand that motion to be continuing the item of certification of the ir. i thought it was the point that commissioner sugaya raised. perhaps we could read the transcript. >> i thought it was clear --

this was not any attempt to second-guess you. believe me, i would prefer not to have written the memo. i would prefer not to write the memo. i try to clarify some questions that were raised. vice president olague: i read the letter that was drafted, and i think she makes valid points. >> if commissioner sugaya -- he was the swing vote in the continuous motion. if that was the intent, i think the director has articulated to what end? were we gathering information on basically a project that cannot be certified without a new eir? we should do that as part of the new eir, not part of the continuous action. the point of continuance was to

get new information. commissioner sugaya: the point of continuing it was to have staph address the various issues that were raised about what people thought were the failure of the eir itself. >> clearly, but what would be the point of doing that work, other than to have additional analysis for no product? i guess i am baffled. commissioner sugaya: what seems to be at issue here is what does the staff analyze? if it includes an alternative, that is what people talked about. >> nobody is questioning whether we need to do additional work. the issue was what was the purpose of the continuance? commissioner sugaya: for the staff to do that additional work, not just the little things have to do with traffic and transportation, it was to address the issue of the

inadequacy of the alternatives. if we get into that discussion, bringing up new alternatives of forces at recirculation, is that correct? >> i believe so. >> the new alternatives do not force circulation unless they are alternatives that avoid that. vice president olague: my sense is that some people -- i did not feel the same way based on my vote, but it seemed we were being challenged by the project sponsor's attorney, and it was insinuated that we were acting outside of our given role as it relates to ceqa. we were put in a defensive 4 we were or were not and are given a role. i think the attorney of the project sponsor came up here and was out here five, 10 minutes

challenging the commission's role, as i remember it. commissioner moore: i recall that the city attorney stated that the commission had found the eir inadequate and basically restated our decision. what went beyond this was the banter, giving each other more breathing room. as far as i am concerned, i did not see that for me to put into question adding a couple of pages to the existing eir and everything would be fine. just like commissioner sugaya, it was almost re-scoping. there were substantial issues already missing from this eir, brought up clearly and concisely in the original draft comments when we first read the draft eir. but the department or whoever chose to completely ignore that.

the shortcomings were only restated. there are almost identical to what was missing in the draft eir. i felt completely safe to not agree with the continuance, but did not feel threatened the decision would be made was the decision we made. in addition, every minute of this discussion sets incredibly bad precedent for what else we are opening up the door to future eir's and ceqa discussions to be. i feel very uncomfortable. i have talked with the city attorney about it, expressing my discomfort with this even being on the agenda, but i voted against the continuance in the first place. president miguel: commissioner antonini? commissioner antonini: in reading this agenda item, this was an informational hearing item, and it was continued until january 27. is that the date?

secretary avery: january 27. commissioner antonini: that was myé have been the maker of the motion, i am not sure. the scope of what will be taken up when this is resumed on the 27th could be the subject of discussion, and i certainly think whether or not an alternative has to be included with the pretension that it is something we are discussing today, but certainly there were comments about other parts of it regarding some impact, whether the analysis was thorough enough or not. but that is what i remember from the hearing. i assume we are moving forward to the 27th, or whatever the date is in january, to continue our discussion, and the staff will try to answer the commissioners' requests as far as alternative information with alternatives or things that may not have been analyzed.

hose commissioners who t that way. president miguel: commissioner olague? vice president olague: i would ask the city attorney to review the transcripts of that hearing and to determine what the intention of the motion was, really. we seem to have some debate even from one of the persons who voted for the motion. i just think as soon as possible we need to have a public hearing that we have been planning for over a year about ceqa and the department's approach to it, and i guess we also have to include now what authority the commission has or does not have as relates to this issue, since we were challenged so clearly by the project sponsor's attorney, i felt, last hearing.

>> i think for whatever reason -- president miguel: we were told -- vice president olague: we were told -- president miguel: i am not interested in a challenge from a member of the public. with the city attorney comment? >> it is really the secretary of the commission who is charged with reviewing the minutes and the tape to determine what action the commission took. here is my understanding of what happened two weeks ago is that the commission declined to certify the eir, provided direction to staff on what the inadequacies were of the eir. no determination was made at

that hearing of whether or not recirculation would be required. the project approvals were continued to january 27, along with the certification, with i think the expectation -- again, the secretary will need to confirm this as well -- with the expectation that the eir would be changed to address the commission's direction. if recirculation is required and there was not enough time between now and january 27 to effect that recirculation, another continuance may be in order in january. but the commission did provide direction and referred to some correspondence in the record and some comments that were made, as well as making comments themselves about what the inadequacies were and what changes needed to be made to that eir, and that the

commission had the ability to consider that correct it changed and amended eir in january. and that some additional public notice was required because of the recirculation issue, and it was continued again, and that staff could advise commission. and one other point, on this question of the memo, this paragraph, one clarification, i thought that paragraph was intended to mean that there is the ceqa context, where the commission can direct how to correct or improve an eir or the ceqa document, whenever it is. there is also the project approval context, where the commission can seek the information that it needs before

it approves the project. one example of that, i think, was what other information is necessary about this project in order for the commission to approve it, both within ceqa context and outside of it, not that the commission directed anything outside of the ceqa context, but there are these two separate contacts and two approvals with decertification of the art and the product approval. -- with the certification of the project and the product approval. that is how i read that memo. president miguel: thank you. commissioner sugaya? commissioner sugaya: just to follow-up on stacy's comments, my interpretation is whenever this comes back, whether a january 27 or thereafter, what we were looking for i think was to have what you might call a

report. that revised eir, whatever term you want to use for it, what address all of the issues that were raised at the public hearing, including the suggestions for certain alternatives which related to the existing power -- with the existing tower. that would not be in the form of some memorandum or something that says, oh, yeah, this is such and such, but it would be what i thought would be the context of the environmental document and the way the environmental documents are set forth. i

extremely concerned about. so you go back home and come back. i think procedurally, there is much more involved, and that is the expert evaluation of the building at hand. the structure of use, its ability to adapt to codes, etc. it goes on and on. there is a long list. the second thing is more of a question i am directing to the city attorney, and please correct me if i misunderstood. i heard you say that you acknowledged that we denied the approval of the eir. but they knew followed up by saying in granting the extension, we basically have to reconsider it.

>> commissioner moore, the purpose of the continuance was considered the eir as revised, corrected, changed by the staff following your direction at that hearing. again, if there is some controversy, i would look to the secretary to take the time to evaluate -- commissioner moore: i would say the controversy is very much in the fact that if the commission makes a decision on the eir, there are no second or third to reconsider. the extension does not mean automatically we have to re-hear it again. secretary avery: commissioners, if i may, my sense is the city attorney is saying i need to go back and review the tapes of this hearing. let me say my take on this is so totally different from what you are discussing. the commission had a motion

before it, and that motion failed on the vote. the commission failed to take action to be there determined that the document was inadequate board to determine that it was adequate. in that failure, the commission had a right to continue the matter for consideration before a full body, and that was my understanding of the action that you talked with the matter was continued. all of this other, whether or not you are considering any other work that the staff needed to do to follow what on historic resources or whatever, that was not part of the continuance request, in my mind. if that is what you want to do, that is something totally different. procedurally, you did not taken action. your motion failed. you did not find the document inadequate. you argued and commented that the document was not adequate.

three of you decided you felt the document was adequate. that is not a decision for this body. there needs to be four votes in either direction. the matter of continuance for me was appropriately, -- was appropriate, because i am assuming the motion was to allow any board member who could be appointed and sworn in and confirmed by that time to participate once they reviewed the record. that may not have been in your mind when that happened, that is what i thought when you took that action to continue. i will review the tape. i will come back and tell you my findings from that review. but that is what i remember took place on that date. president miguel: thank you, ms. avery, because that was my opinion as well, that we did not

deny or certified. that was my opinion, personally -- unless i hear from the city attorney i am wrong in that interpretation. we just did not taken action. -- we just did --an action. secretary avery: my understanding is is not an automatic failure. you have to take that action. commissioner sugaya: i like to hear from the city attorney's office. secretary avery: your rules say it is not. the city attorney? >> the rule, as ms. avery states, a motion that receives less than four votes is a failed motion, as a substitute motion for continuance or other action is adopted. when the commission failed to certify the eir, the

commissioners who voted against the certification gave direction on how that eir could be corrected, revised, improved in order to achieve certification, and that reconsideration is going to happen at the end of january, january 27, but that the commission failed to certify the eir at that hearing two weeks ago. president miguel: may i ask an additional question? what if it was the tied 3-3 vote and there was no motion for continuance? what would bring the result -- what would result have been? >> i am going to have the secretary comment on that. i think what you're rules say, and, ms. avery -- secretary avery: my

understanding of the rules -- let me pull them out. ia motion that receives less thn four votes is a failed motion, resulting in disapproval of the action to be taken by the commission. off the top of my head, i cannot remember if the vote was for certification of the motion or not certify. president miguel: it was for certification. >> i have always been surprised by the fact the commission can take a vote in either direction and then vote afterwards to continue it, but it is because of the way that it is worded in your roles -- rules, which is is a failure unless you vote to continue. to answer your question, if you had not voted to continue, it would have failed.

president miguel: dad is my understanding of the rules, whether we all like it or not -- that is my understanding of the rules. secretary avery: you had a long hearing on establishing that rule, and maybe you need to go back and demand that rule and take it out, but you put this in. yes, if you have not continue the item, my understanding from this is it would not have been certified. president miguel: alright, so because of the motion to continue, we did not deny the eir, we merely ended up continuing it. secretary avery: yes. you still have opportunity to take the action. president miguel: all right, let's continue. vice president olague: would that be an automatic reading that this case is open, or would it be depend it -- if you

automatically continue, it is subject to another vote? because i am concerned that commissioner sugaya seems to be of the understanding that is a little different. i trust your experience, i trust your opinion on this. secretary avery: thank you, i appreciate that. my understanding is because you continued this item, the question before you is pretty much the same question that was before you at the last hearing, to certify the eir without any addition -- commissioner sugaya: no, no, no way. secretary avery: that is a new case. vice president olague: i would still like to see the language. if you could review the transcript and then> see a memo with the exact language of the motion. secretary avery: i will do that. vice president olague: