consent we are going to call item 7 next. appeal no. 13-070friends of yerba buena, 765 market street residential owners association, matthew schoenberg, joe fang, margaret collins, paul sedway & ron wornick, appellant(s) vs. planning commission, respondent motion holder: 706 mission street llc706 mission street. protesting the adoption of findings for a planning code ♪309 determination of compliance (rehabilitate existing 10-story, 144-foot tall building and construct a new, adjacent 43-story tower, reaching a roof height of 480 feet with a 30-foot tall mechanical penthouse). motion no. 18894. for hearing toda. >> we will start with the appellant.

thank you members of the board. and the claim here is that the planning commission abused the discretion of 309 of the planning code because it made determinations that do not comply with 295 and because it made determinations that did not comply with sequa. so on the section 295 issues, the planning commission voted to increase the acl, or the annual limit for shadow and to allocate that to this project entire and with that increase or action was not going to have a significant effect on the use of the park. and the state law that applies here, requires the planning commission to trace the route that it takes from the evidence to the findings and the findings of no significant effect is not supported by the evidence and did not provide any route between and several respects. one is that the 295 decisions

are actually not enforcable because it is not clear, what the final number is in terms of total maximum that would be permitted. and to demonstrate that using the motion holder figure of 38.30 percent for the amount of shadow that existed on union square in 1989. so, we start with the decision on the transit center plan in 2012, and put that on the screen. it is page seven of exhibit 7. and that is showing up on the screen very well. what the planning commission did was look at the amount of the acl that was left after the 690 market street project in 2003 in the yellow item in the row. and how much will be needed for the new project and the

buildings and that is 0.11 percent and so we need a total of 0.19 percent additional acl. but what is that going to get added to? >> exhibit 16 which was not been submitted yet but i will when i am finished and if you add that to the 38.30 percent of cumulative shadow, the total existed in 1989 on this park according to the motion holder, you get 39.94 percent and that is actually not the right calculation because if it is about the 0.02 percent that was added by the 690 market project and if you include that in the second calculation here on exhibit 16, you will end up with 38.15 percent and so we are left in an uncertain position with the total maximum shadow that will be to allow for the new buildings on this park and that is an abusive

discretion and it is not enforcable and does not apply with 295 and section 309. and when you, carry that forward for this project and the same problem allows us what are you adding the 0.06 percent increase for this project to? are you adding it to 49.3, or 38.15 percent? not clear, those calculations ends up with the numbers, and they are in the bottom part of 16 and i am not sure whether you agree with us but it is a 0.06 or agree with the planning department that it was effectively 0.01 percent increase regardless, you are adding it to an uncertain number that could go in two different directions. and another problem with the commission's decision is that in 1989, the qualitative criteria for increasing shadow was not to avoid additional shadows during the midday, that was to be used according to the

1989 policy memo, to get one up to 0.1 percent, which is the quantaty criteria and it says, the memo says on exhibit c that is an additional 0.1 percent of the current shadow should be permitted if it meets the criteria for the park. and so instead of using the qualitative criteria to justify a increase up to the limit they used the criteria of avoiding the shadow in midday is to go above the miment of 0.1 percent and so that reverse of the limit of those two criteria is inconsistent of the policy and another example of not connecting the dots. and so the third problem is the current decision is based heavily on the notion that sunlight was added to the park by the macy's remodel, what is

the relevance of that? the suggestion is that while we have a bunch of sunlight, we can allocate to this project but the finding on this project was based on what we call the proxy me tricks and there is no corresponding of the macy's sunlight is that going to offset the impact of this project, in terms of time of day and area of the park, there is nothing to connect the dots between what it readded and what this project is taking away in terms of sunlight on this park, and finally, the proposition k requires the commission to adopt the criteria and they have never adopted a criteria that it did not want to change. >> that is now complying to continue to change it every time that a new project comes along to add more shadow.

>> and another basis and for the board to over turn the decision. finally, on the sequa issue, i don't have much time and so i am not going to restate the claim but there is a dispute between the parties about the economic feesbility of the reduced shadow alternative and they can produce some rebuttals to my client's critique of the original analysis and without going into great detail, my economic involvement and the rebuttal to that rebuttal, which the applicant had when they filed the briefs on the 25th and since the 23rd of this month and so i would ask the board to let me put those into the record and for you to consider them, and so those are i have several copies of those additional rebuttals and letters dated july second, or july 22nd, and therefore, a while after we filed the

opening brief they could not have been submitted sooner. >> >> if you wish to accept those into the record you would need to acknowledge that otherwise, you know it is up to you whether you want to or not. >> i will accept them >> and exhibit 16 on the screen is also a summary of the calculations thank you. >> yeah. >> before you sit down, less documents have all been distributed to the motion holder and the department? >> they have, we tried to submit them a couple of days ago and they were rejected as not the proper time to submit but at that time i provided them to the other parties. and with the exception of sibt 16 which i think provides them at this time. and recommended and this one here. >> thank you. >>

>> make sure that they do have those. >> they have that already in. >> we don't have it here. >> we can hear from you now. >> good evening, vice president lazarus and commissioners and bradish, and the appellants have appealed the determination and request for exceptions for the 706 mission street project and in fact they have not alleged non-compliance and instead this is another, long line of attacks by a series of neighbors who oppose the height of this budget and we respectfully request that you

deny the appeal and approve the action of the planning commission. and before i address the arguments i thought that it would be helpful to get the background because we have been talking about this project for a long time and we have never been able to present it to this board. the architect is present if you have questions. 30 mission street and it consists of three parcels and the building that is owned by project sponsor and it has been identified for over 20 years for the future home of the museum and the garage and the agency parcel and the jessy square garage will be conveyed by the agency to the agency and to the project sponsor for agreements that were approved earlier and that will complete the cultural district that was part of the redevelopment plan. and the project would rehab

tait the building, and construct an adjacent 480 foot, 43 story teller and provide a permit home and include up to 190 residential units and 4500 feet, and operated by the mu see sxum it the project has been approved by every city body, and there are many, including the historic preservation and the planning department and the park and rec commission and approval by the board of supervisors. and they have challenged every appealable action and every non-appealable ones and each time using the appeals as a vehicle to challenge the height of the project no matter what the substance of the permit at issue and now they used thed 309, appeal process to again, challenge the 295 actions tonight that you determined were not the proper subject of the jurisdiction, every city

body that has had the justicersing dition over the height and shadow has approved it, in addition, the project was substantially arise to address the concerns raised by the community, as originally proposed the projects would have been 605 feet tall and cast over 950 square foot hours on union square and as a result of the process, the project was reduced, to 480 feet, and cutting the shadow on the union square by 75 percent from the original proposal. and the city has properly determined that the project would not have a significant shadow impact within the meaning of both proposition k and sequa and in fact the shadows on union square would never fall after 9:15 a.m. and would fall on a few weeks a year at the early hours in the morning where the park is in low usage and thus the eir which was held by the board of supervisors concluded that it would not have a shadow impact on public open spaces including

union square and the planning commission and the park and rec commission to determine that the park would not have a significant and adverse impact on the use of the square of prop k and appellants to the process to revisit the city decisions but the appeal lacks merit. as you know the construction of the new projects downtown and provides for the review of the design. and confirmation of open space requirements and for authorization of certain exceptions to the planning code. the planning commission granted the determination and exceptions for this project. in order to reverse that planning commission action, the section 309 requires that this board find either that the planning commission misinterpreted the planning code or that the planning commission abused its discretion pursuant to section 309 not to proposition k. this appeal does not allow a single interpretation of the planning code or a single abuse

of discretion pursuant to section 309 and meritless and first as you know the appeal makes the attacks on the planning commission's actions to increase the shadow budget on union square which you previously determined tonight are not within your jurisdiction and second, the appeal challenges, the planning commission determination that the impact on union square would not be significant and making an, allocation to determined not to be in the jurs dition, to the extent that you are interested in the shadow numbers and what is actually allocated and we spent a significant amount of time with the planning commission and i have an exhibit that i can show you if you are interested that demonstrates that. no? not on? >> can you see that up there? >> referenced it the overhead. >> so this exhibit, it just to give you the percentage and demonstrates exactly the total available sunlight, the

percentage that gives the macy's adjustment and i have a series of exhibits here that go all the way through to include such a budget that was allocated to transbay and so you can all of them are there and before you tonight just in case it is something that you wanted to see in response to these exhibits. and finally the appeal attacks the planning commission's action and each of these claims lacks merit. and first, the connection 295 determination is not a significant threshold and even if it were, they are comparing apple and oranges and the eir with the project itself would not have a significant shadow impact it was a cumulative impact that was determined to be significant. and prop k does not have a cumulative measure and so it is really just the project impact and so there was inconsistentcy to the finding, and the shadow budgets are not measure to

sequa and if there was a project impact and a measure and the planning commission, i will wrap up. >> okay. >> okay. briefly just to address the 309, because that is what is properly before you, the planning commission either misinterpreted the code or abused his discretion in granting the 309, they properly authorized them and reviewed the decision and it is not alleged to the contrary and so we urge you to deny the appeal and finally because it will be submitted to a rebuttal i would like to submit our rebuttals as well. >> thank you. >> and are there multiple copies or just the one? >> is there enough for the board? >> i apologize i don't have enough for all of the board at this time. >> okay.

>> just this planning do they have a copy? >> yes. we can hear from planning now. >> good evening, vice president lazarus and my name is kevin guy with the staff and i would like to present an overview with the actions that occurred on the project date. prepared for the project was certified with the planning commission on march 24th of this year and three separate appeals of this were rejected by the board of supervisors on may 7th. and a number of entitlement actions for the project were considered for the planning and recreation and park commissions on may 23rd. both commissions adopted findings under sequa and made determinations under planning

code 295 related to the shadow and union square, the planning commission offered findings and approved a section 309 downtown project authorization and request for exceptions under the 309. and the board of supervisors approve a high change and special use district for this site. >> on july 23rd, the board of supervisors rejected the appeal on this project and the board also approved the proposed for the site as well as the height change from the existing 400 to 480 feet and approving the legislation, the board found that the project was generally compatible with the scale of the development in the vicinity and that they were appropriate given the change in the project as well. the planning staff has submitted a written brief surrounded by the what was given to the appellant, and i would like to comment to the point about the submissions and the recreation and park and the

planning commissions abusing the discretion and addressing the shadow budget for union square and so when the voters adopted proposition k, that language, specifically authorized and empowered the recreation and park commission and the planning commission to jointly adopt implementation criteria for the section and what will become 295 or proposition k, and in 1989, the commissions did that and those criteria that were contained within that memo are both qualitative and quantitative criteria and so with respect to the quantitative, the commissions took a look at a select number of parks within the greater downtown area and for a few of those including union square and identified specific amounts of shadow, and they believe could be tolerated on that park or should be allowed under the certain conditions but that was one part of it and there was also a

qualitative criteria that were adopted with respect to how to evaluate and consider new shadows on parks. and in the qualitative criteria has to do with the duration of the shadow and the time of year and the time of the day of the shadow and the area of shadow and the area that is affected, how that area is used. and in the case of union square was identified as a park with heavier midday usage and less usage in the early morning and evening hours. and with respect to the history on the changes to the shadow budgets for the district plan, it is true that for union square and for a number of parks that would have been affected by the transit center and the buildings and acting to 2012 to increase the shadow budgets and just to touch upon the accounting issue, the increase to the union square did account for the fact that the 690 market project did cast the new shadow on the union square and if it had not back

in the increase on the macy's expansion project approved in 1996, and so, essentially what you are left with, are and increased budget and the number of spaces with that allowable shadow given over to projects in the transit center plan area and so that request with outside of the plan area was to raise from a existing budget of 0 to an amount of shadow that would accommodate the shadow cast by the project and make or incorporate the additional sunlight that occurred as a result of the macy's project and in making the findings they did evaluate the criteria and found that it would not result

in the adverse impact to the use that have park given that that was for a limited amount of year for basically four weeks in october and november. and then, four weeks in the spring as well, and in the early morning hours for more than one hour per day. and so, all of these were, all of these were done under this sort of authority, if you will or the direction that the voters gave initially when adopting prop k and directing those commission to adropt implementation criteria and giving them the framework to evaluate the aspects of the shadow that might be cast on the new parks under the jurisdiction of the park department. and i would be happy to answer any other questions that you may have with respect to the shadow questions, section 295 implementation or with respect to the 309 approvals for the project. thank you. >> but that is with respect to

the urban design issues. >> certainly, 309. definitely touches upon it. >> okay. >> talked about and i am sure that it is a fairly extensive history on the development of this particular project and this particular design what did the department go through with the developer. in terms of various iterations if you will besides what was listed in the ir, were there actually designs that addressed as of right power verses as of one that cast no shadow? >> good question, going back to the prior of the eir this project has been through a number of design iteration and it started out at a different

form and the height and the proposal of 605 feet. we wanted to address the height of the building and also the concerns about the amount of shadow that was cast by the initial proposal on union square and other open spaces and through the course of that internal design review process, the project has been incrementally reduced in height from 605, approximately down to 580 and 550 and 520 and ultimately 580 feet that was approved by the planning commission, and the eir as well and analyzed a number of different alternatives and one of those being a 350 foot tall building and that would not have cast shadow on union square and although it would have cast the shadow on other open spaces and that was

rejected in the findings made by the planning commission. and based in part as of a sight of a project sponsor and the appellant, the issue of the economic and also on the issues as well. and analyzed in the ir and deemed to be or certified to be adequate with the process and the various alternatives and the commission did make the findings to reject the alternatives and make the statements overriding considerations. >> okay. >> the sud addressed some of the exceptions, i can't recall too many projects that seemed to exist that had no design exception. and meaning that dealing with the podium height and other things. >> right. this and in this particular case, they are the requested

exceptions where you could argue was perhaps something of a design issue, but it was granted an exception, and ground level wind currents and the residential parking and there were more traditionally designed topic areas and the brilliant exposure and the limitation and both limitation and things like that, that were identified as areas of the

>> we can take public comment as a reminder of those who are the officers of the associations that filed this appeal as well as the named individuals should not be speaking under this public comment opportunity and anyone else is free to. and there are more people other than the two who have stood up i ask that you come forward and line up on the far wall to give us a chance to move this through. >> good afternoon, my name is (inaudible) and i am here representing the friends of the mexican museum and you heard from the lawyers and the planning and so let me give you the community perspective. 20 years, and in the last 20 years, the jewish got built and the african americans and the museum of the arts got built and the center and you know the rest. we have been waiting for 20 years. 20 years. and in those 20 years, we saw a 600 building and i look at it

as a super burrito that got down sized to a regular burrito and got down sized to the mini at 480. because these people that are concerned, not about shadow, but they are concerned about the views, and that is the real issue here. is the views, and so, we look at, the issue of shadow and they want to use that as the issue, okay. and why is it that none of it went to any of the hearings to protect when transbay went through the process. not one of them attended a hearing, and the attorney was in that hearing and 9 projects got approved. and all the way through from city planning to the board of supervisors. and as high as 1,000 feet.

and 900 feet, 800 feet, and 700 feet. and 600 feet. and yet, this has been trimmed down and trimmed down and trimmed down and they picked on this project. now they are using the shadow as an excuse? >> they were not protecting the shadow that these transbay projects have created. if you look at the shadows, that the transbay has created, 9 parts are affected. here we are talking about 0.06. i think as a latino being born and raised here in san francisco, this is shadow. our people have been in the shadow. and we have been the farm workers, we have been the waiters. and you know, all of the work

that we do. for this city, and the rest of this country. so today, i ask you look in your conscious and do what is right, thank you. >> next speaker please? >> president lazarus, and commissioners. my name is rick smith and i live at 680 mission which is across the street from the project site and i am against the appeal and i am grateful for the potential of the coming of the mexican museum in the neighborhood and for the negotiated and the pedestrian open space benefits that were done as part of the purchase agreement and both president chiu who has expressed serious concern about the dancing shadow in union square and the enforcement of prop k in parks throughout the city and the concern for this project i heard expressed with the land use commission and the july 23rd board of supervisors meeting has been that the parties be able to resolve the diffenc