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: to bring more like to what was understood. i guess at some point, when we revisit the rules, i like to discuss when a commissioner is in the middle of deliberation and an attorney is called up, i think it is disruptive to the process. i think that is in many ways what happened last time, because we were being challenged by an attorney for the project sponsor. when we get to deliberation, it

is an outsider. it is a person. somebody wa member of the commission, and it felt very much like we were in debate, almost, i don't know. when we get to the question of rules again, i like to look at i concede: up for clarification and architect -- i could see calling out for clarification and architect, but i thought the attorney put us in that position. i did not feel like it was a constructive conversation. i can see calling out staff for clarification or certain members of the project team, the that nature was a little different. i think what we call pulte -- it is important -- i know we cannot put rules on that, but we need to be sensitive to that a little bit. secretary avery: commissioner olague, in response, i would

just say that part of -- to address that, you might want to empower your president, whoever, to be there stopped the proceedings until that type of behavior ceases or to call a recess and kind of break the tension, so to speak. but i think the commission would need to empower whoever is chairing, or even to empower the commission secretary, to stop the proceedings and address those situations. vice president olague: because then i could call the attorney from the other side and we could have a whole -- secretary avery: that is something for the body to consider. vice president olague: thank you. president miguel: commissioner sugaya? commissioner sugaya: just to go back to the continuance, i did not vote for the continuance

without anything happening in the interim. it to me, it is clear the continuance, the way i've voted for it, was to have, as i have said a couple times before, to have them look at those issues that were being raised at the hearing by people who testified and also commissioners' comments and other materials that were submitted. i don't think at the end of a couple of months, when it comes back in january, if we're just going to reconsider the same document, that was not the purpose of voting for the continuance, at least from my standpoint. my vote on the continuance had nothing to do with whether there would be a full commission or not. secretary avery: thank you, commissioner sugaya. my take on it was so very different, and i will go back and review the tapes and provide all of you with a transcript so we can be clear on what to put.

i could be totally wrong, and i would be willing to admit it. but that was not my understanding at the time the vote was taken. president miguel: commissioner antonini? commissioner antonini: a couple of issues. the first is the issue brought up about calling people from the public to testify. i think all of the commissioners over the course of my time on the commission have frequently called up advocates or opponents on items during our discussion. i think that is appropriate and it works both ways. i do not have a problem with that. but i will talk a little bit about our rules. i agree entirely with secretary avery, it is not just eir hearings. at the same times at discretionary reviews where you need four votes, and absent another motion which would be a motion to continue,

in the absence of four votes, it is disapproved. likewise, with conditional use, absent a motion to continue, absent for votes, 3-3 situation perhaps -- that is a little different, but definitely on the eir and applies that way. secretary avery: the city's attorney has advised me this has drifted towards rules and regulations, which is not on the calendar and we cannot be discussing that. president miguel: thank you. john? >> just to clarify. i just want to go back to the purpose of this memo, which started this discussion. the intent of the memo was not to question the authority of the commission, it was to clarify. the commission gave us direction to do additional work on the eir. there is no question about that. the purpose of this memo was to clarify what the point of that

was and to clarify what the commission's role is and what the additional questions the commission asked. the question of the continuance , whenever you continuing project, in my three years here, the purpose of the continuance has been to reconsider the project with new information or with a new design or whatever it might be. but there is an expectation of a change with that continuancec3]. unless it is about the issue before the full commission. but i don't recall that being the issue in that continuance vote, either. typically when you continue an eir, u.s. for changes to be made and come back at a different date -- you ask for changes to be made and come back at a different made. but was the expectation we had. it was the assumption we have been working under. president miguel: commissioner

olague? vice president olague: i guess, you know, one of the questions i had was related to the second paragraph on page 2. so, you kn ow, a member of the public raised this, and then commissioners a guy asked that this be pursued. -- and then commissioner sugaya asked that this be pursued. basically what i am saying is this is outside of the scope of ceqa and should be out of the question. >> i was trying to acknowledge that what any information requests pure and simple may be outside of ceqa, the clarification could well be interpreted within the whelm -- within the realm of questioning. and after the hearing, that was further amplified. it was not just information for

the sake of information, but they were information requests that had a bearing on the conclusions on the impact and also may have affected their willingness to consider certification. i was basically trying to say that depending on how it was articulated, it might be information that would be best dealt with through the entitlement process, articulated with ceqa, and that is how we are interpreting the questions that were raised. s4 question then that you will be responding to -- >> yes. vice president olague: okay, i was not sure. and in terms of the exchanges that went on here, -- >> in terms of the exchanges that went on here two weeks ago, as various people said, you

could have had a 3-3 tie be a disapproval, and the deficiency, if you want to interpret this from the project's sponsors attorney, what you are taking action, your not articulating findings. vice president olague: i read this was outside of the scope of certification, and i assumed you would not be responding to questions. >> i think the critical thing is whether you are disapproving or asking for more information, so somebody does not have a basis for challenging it. president miguel: thank you. secretary avery: commissioners, that concludes that item. i would ask that we go back to the report and that miss rogers give her report on the board of appeal. >> good afternoon again.

the director handed me some notes from the zoning administrator and there were a couple of items. the first has to do with the notice of violation and penalty for the academy of art university property at 460 townsend street. this was acquired and converted to academic use in september of 2009, well after their informal review application in may of 2008. it was uncontested they had converted the property without the required conditional use authorization, a fact which an aau representative admitted at a hearing before the planning commission in 2009. the department commenced enforcement action, and after the complete enforcement process, it was appealed to the board of appeals. at the appeal hearing, aau argued they had a complete imp

and the department was abusing its power by not allowed to go forward. the department responded it was an undisputed fact that the use of the property was changed without the required c.u. and that aau did not have a valid institutional master plan because the planning commission did not have access to the document and had been more than two years with the most recent some middle and that the -- of the most recent submittal and had not been reapplied. the board of appeals upheld the ruling. the commission will be more thoroughly briefed on aau enforcement issues on december 9. there was also an appeal of a building permit subject to d.r. of this commission on december 10, 2009.

at the hearing, the bicommission voted to approve the building permit as recommended with modifications. the project proposed an expansion of our rear yard cottage and a small new structure at the front of the property. the proposal includes numerous green building techniques, including rain water catchment and solar panels. the palin targeted to not comply with residential design guidelines -- the appellant argued it did not comply with residential design guidelines. the board voted unanimously to uphold the commission's decision and approved a permit with the condition the scope of work excl the front structure, o fórequiring the project spono submit a new permit for the building. the department noted the project scope had already been

thoroughly vetted through the process and section 311 cannot be required. that said, the second permit would also be appealable to the board of appeals. that concludes the d.a.'s summary of the board of appeals. president miguel: thank you. ]y commissioners, you are now at the 15 minute general public comment category. members of the public may address the commission on items of interest to the public that are within the subject matter jurisdiction of the commission with the exception of agenda items. with respect to this category, each member of the public may address you up to three minutes, keeping in mind the entire category has a 15-minute time limit. i do not have any speaker cards for this category. president miguel: is there any general public comment at this point on items that are not agenda items?

>> sue hester. a couple weeks ago you heard the case of 35 lloyd and continued the case to december 2. yes, december 2. i talked with staff to find out what the turnaround time is to be with the revision to get this back before the commission. because of the holidays, the turnaround time is the end of next week. my status report -- i am the attorney for the project, is the architect you gave instructions pretty clearly that the architects talk to each other, and the architect on this project is joe poplar. what i understand is this is not going to be ready. it is not going to be ready because it has taken a long time. we have not even had a meeting, unless it happened the past

couple hours. there was a request from the developer with elaborate conditions before there would be discussions, that there had been agreement on the number of units, bedrooms, four stories, that one of my clients before a community board, which i thought was a waste of time. it is a lot of this procedural stuff. my clients are together. they have agreed to all this. but in the real world, you will not have that hearing on december 2 it and you'll be faced with a continuance request, and you are not meeting next week and i will not be here on the 18th. i thought i should bring that up now because it is the last chance to tell you, thank you. president miguel: thank you. is there any further general public comment? if not, general public comment is closed. secretary avery: thank you.

commissioners, you are now on public comment on agenda items where public hearing has been closed. members of the public can have already been revid and a public hearing at which members of the public were allowed to testify and the public hearing has been closed. that opportunity as at this time. each member of the public may address you up to three minutes. the only item that this pertains to would be item 4, case number 2,007.0519, 1645 pacific ave. and i don't have any speaker cards for this category. president miguel: all right. is there any public comment on items were the hearing has been closed, which is item for? -- which is item 4?