that's the intent of the rules of this board. president chiu: my understanding is we can vote on the motion to divide. we can vote on the nondebatable motion. supervisor elsbernd: there's no motion. i've divided the file. there's no motion. the supervisor can unilaterally divide the file. there's no vote to be called. president chiu: so i believe that we can vote on the two halves of those files. if i could ask for the deputy city attorney, if i could clarify for us. >> the board rules provide for division of the question and that once a supervisor requests a question to be divided that the president shall order it divided. it best not -- the question of dividing is not voted on. the rule also says that when divided, each proposition shall then be considered and voted upon separately as if it had been offered alone. president chiu: so at this time, it would be in order to vote on each half of those questions. supervisor elsbernd: does the

elections code now require a new publicly noticed hearing on the separate issues? >> it does. you're now contemplating sending a different question to the voters than what was originally noticed today and because the elections code says that any amendment to a proposed ordinance shall be noticed for additional public comment, the newly proposed measure needs to have additional public comment and noticed. president chiu: supervisor daly. supervisor daly: i think this is a clear case of a procedural opportunity for any member of the board to vote for or against any part of an item that is in front of us. in terms of a question, there's a difference between a question on the ballot which if there's a majority of votes for the divided questions here, which is a different question, will

be the properly noticed question and the unamended version of the item. for example, if on numerous occasions i've asked for separate questions, i have voted yes on one and no on the other but a majority voted yes on both items, that didn't require an additional reading at the board of supervisors which it would have if supervisor sean elsbernd's theory here followed on this item. but ultimately what really matters is the board rules, which are painfully clear, that the order of how this moves forward is made by the president of the board of supervisors who is president david chiu. that decision stands unless overturned by a majority here.

so ultimately, i appreciate sean elsbernd' creativity with the board rules but ultimately he's wrong and any advice coming from miss adams at this point matters less than the decision from harvard trained attorney david chiu. president chiu: before sean elsbernd responds to this, it is my understanding that a motion to divide would mean any one supervisor could prevent something being considered from the ballot if someone makes a motion to divide. what i would like to interpret, what you're asking us to do is vote on different portions of this. supervisor sean elsbernd. supervisor elsbernd: just in response to supervisor daly's comments, i'll wait until -- i think it's important, mr. president, that you hear this. in response to supervisor daly's comments, what

differentiates what is happening here between the examples he's used, this is a division of a ballot measure. he's divided in the past ordinances. and as we learned about a year and a half ago when the board used ordinances and the charter to trump board rules, when it came to supervisor michela alioto-pier being appointed to the bay area bay conservation, ordinances and charter trump our board rules. the election code makes clear -- the election code overrides our board rules and the election code mandates that there be additional notice and an additional public hearing when there are separate ballot questions that have not received public notice. the ordinance, the code trumps the board rules. president chiu: supervisor david campos. supervisor campos: i will respectfully disagree with sean elsbernd and the statement by the city attorney's office.

i think that the interpretation that has been provided is inconsistent with the letter of the spirit of the board rules and i think that the president is the ultimate person who decides what happens here and i think that consistent with the intent of the rules, i think that there should be a separate vote on each divided item but i don't think it's consistent with the rules to say that one supervisor can keep something from the ballot by simply dividing the file. i'm not saying you're making a motion. you're dividing it. but i don't think that the rules give you that authority or power. >> i do have to credit him for your parliamentary knowledge. i do think we have a path forward from supervisor ross mirkarimi. supervisor mirkarimi: when supervisor sean elsbernd made his amendment, i laughed because i knew what he was doing. this is not an unfamiliar tactic, not one that is used

with any great regularity but we get the situation here so i will motion to amend the halves that supervisor sean elsbernd wanted to amputate and make them whole again on items number 42 and 43. that is considered noticed. president chiu: supervisor ross mirkarimi made that motion to conjoin the two halves. is there a second to the motion? seconded by david campos. any additional conversation? if we could take that without objection. supervisor elsbernd: i would like to divide that file. president chiu: so ladies, this is new to me as president of the board but this could go on for a while. supervisor sean elsbernd has unilaterally divided the question. supervisor ross mirkarimi. supervisor mirkarimi: i would like to repeat the amendment of a motion that we reattach the

items of 42 and 43, that has been divided by supervisor sean elsbernd. president chiu: ross mirkarimi has a motion to reattach. seconded by david campos. if we could take that without objection, motion passes. supervisor sean elsbernd. supervisor elsbernd: we can do this all night. mr. president, i would like to divide the file. president chiu: we are dividing this file. supervisor sean elsbernd has done this unilaterally. supervisor ross mirkarimi. supervisor mirkarimi: this is the same exercise. i make the motion and amendment and reattaching. president chiu: if we could take that motion without objection. motion passes. supervisor sean elsbernd. supervisor elsbernd: i would like to divide the file, mr. president. president chiu: supervisor sean elsbernd unilaterally divided the file. supervisor ross mirkarimi. supervisor mirkarimi: i would like to take a station break for supervisor daly. he would like me to follow through so i will make my

amendment again. it's a familiar song. it is to reattach the parts divided by supervisor sean elsbernd 42 and 43. president chiu: is there a second to the motion? seconded by supervisor david campos. that passes. supervisor elsbernd: i would like to divide the file. president chiu: supervisor daly, i had already acknowledged -- >> point of order. mirk let's go through the exercise one more time. sean elsbernd unilaterally divided the file. that motion passes unanimously. supervisor daly. supervisor mirkarimi: move to recess. president chiu: we have a 3:00 special order for five issues related to the essential subway. why don't we take that but come back to this matter and

hopefully by then we will either work this issue out or we will not have and we'll go back to the hunters bay view. supervisor mirkarimi: i withdraw the order. supervisor daly: there are a number of people here for the bay view shipyard plan. what would be your -- president chiu: it is my understanding that city staff are poring over the dozen amendments that have been made to the hunters point shipyard project and when that is resolved, i understand there's some questions and some ambiguities and there are answers that will be provided when they're ready to go. they're supposed to alert me and we will bring that back. what i would like to do at this point is call up items 44 through 53. the resolutions of necessity for the central subway. >> pur opportunity to a motion approved on july 22, the board of supervisors have agreed to sit as a committee of the whole

to hear items 44 and 45, a public hearing to senior adopting a resolution to acquire real property interest by eminent domain for the central subway third street light rain extension at 801 market street. also pur opportunity to a position approved on july 20 the board agreed to sit as a committee as a whole for a resolution to require real property by donation for central subway third street light rail extension 2864th street. 48 and 49 are the board of supervisors sittings a a committee as a whole to a require real property by eminent dough maition 4555 stockton street and items 50 through 51, also are the public hearings fored board setting as a committee of the whole to adopt a resolution to acquire

real property by eminent domain for central subway third street light rail extension and 52 and 53 are for the board sitting as a whole to require real property by eminent domain for light raet extension 933 through 949 stockton street. >> for those of you waiting for these items, thank you for your patience. we have a lot of exciting items today f. we could move to the central subway items. we're sitting as a committee as a whole to conduct public hearings on the proposed resolutions to acquire certain property interests by eminent domain and vote on the resolutions themselves as our clerk just stated. we're considering proposals to acquire three permanent subservice easements at market and stockton streets and a fee simple interest in two parcels

at 266 to 268 fourth street and 933 to 949 stockton street. the san francisco community agency seeks to acquire these parcels for construction and operation of the central subway third street light rail extension in san francisco using funds appropriated for that program. the standard tore today and this hearing, we will consider the following. first, whether the public interest and necessity require the central subway third street light rail extension project. whether the central subway third street light rail extension project is located in a manner most compatible with the most public good and least private injury. thirdly, whether the easements and the subject properties and the simple interests to be a required are necessary for the extension project and lastly, whether the city has made the necessary offers to purchase the easements and the feasible interests from the property owners for just compensation as

required under state law. if we make these proposed -- if we adopt the proposed resolutions, we'll be making ceqa findings in connection with the acquisitions. under state law we as a board of supervisors must pass this resolution by 2/3 vote of eight votes. colleagues, unless there is any objection, let me propose the following procedure for this hearing. the m.t.a. will have up to 10 minutes for presentation and support of the resolution and the acquisition of the easements. members of the public that support any or all of these resolutions shall have up to two minutes after the m.t.a. presentations to support through public comment. after that time period, each of the five property owners shall have up to 10 minutes for presentation and opposition to the resolution pertaining to the property. it is my understanding that not all of these property owners are here. i don't think it will take all 50 minutes but it is up to 10

minutes for each of the five property owners. at that time members of the public who oppose any of these resolutions shall have two minutes to speak and the m.t.a. shall have up to five minutes for a rebuttal. so colleagues, unless there are any additional questions on anything i have discussed, why don't we first go to the mta for the presentation up to 10 minutes. >> good evening. i'm the central subway program manager and i'm accompanied by the sfmta head of real estate. today i'll be covering a -- providing you with a brief overview of the project and then i'll turn it over to christin who will provide you the detailed analysis for the two parcels and three easements. this is about dramatically improving transportation, public transportation to downtown san francisco, cutting

trip times to over half to the 68% of the residents that live along the central subway corridor who don't have access to an automobile and rely on muni daily. the project has received its record decision in 2008, in november of 2008 allowing the agency to move forward with the right-of-way acquisition and easement acquisition process we're discussing today. the project has also received -- has issued a notice to proceed on its first construction contract, utility relocation for the south of market and masconey and portal area issued in january of 2010 and the project has also received a major milestone in the fca approval to enter into final design also in january of 2010. and the project has received $10 million as part of

president obama's budget. in february of 2010 and the issue before you today is critical to maintaining the program schedule that will allow the agency to receive the full fund and grant agreement in the third quarter of 2011. the slide before you is the -- a plan profile drawing of the 1.7 mile central subway highlighting the two parcel acquisitions necessary for the construction of both the masconey and the china town station and those are highlighted in red. and the three easement takes that are highlighted in blue are essentially underground easements necessary to accommodate the radiuses of the tunnel alignment. and at this point, i would like to turn it over to kristen. thank you. >> good afternoon, supervisors.

i'm the senior manager of real estate for sfmta real estate and the finance and information technology division. so the two fee parcels that mta needs in full ownership is for two stations. one at 266 to 286 fourth street and the second is for the china town station at 933 to 949 stockton street. the three easements are for -- are underground between 30 and 60 feet down, underneath 801 market street at fourth, under 790 market street at stockton and under 1455 stockton at columbus avenue. those are for the tunnel and again, they are underground and do not affect the properties. the masconey station site at 266 to 286 fourth street fullerton is south of market.

it's owned by convenience retailers which operate a gas station. negotiations are in progress to purchase this property. the second station site in china town is at 933 to 949 stockton street at washington. this property is owned by norman pechan, inc and owns a property management company and residential units and again, negotiations are in progress. over the last several years, people have asked why these two locations? mta studied locations at part of the process. early in the phase two planning, all station access points for the project were provided in sidewalk areas within the public right-of-way and studies were taken -- undertaken to evaluate opportunities for locating station access points and to

minimize disruption to the congested sidewalks and pedestrians traffic along the project corridor. four station sites were looked at within the moscone area including for access and the fourth street was the preferred location. in china town, six different sites were looked at. two created off street location so the vast number of riders will be able to get in and out of the underground tunnels which are underneath stockton and fourth streets. so again, the preferred location is at stockton and washington streets. both for construction as well as for operations. the three easement acquisitions as i explained are underneath fourth to get from fourth to market street under the building that currently holds

the old navy store. that's 801 market. the second one is at 790 market under what previously had the virgin record store and that is, again, to provide access for the tunnel at about 60 feet below the surface and 1455 stockton street owned by a family trust in san francisco and currently has the bank of america as a lessee. so negotiations are underway with all of the property owners and have been for numerous months. the mta board requested -- is requesting -- did request the board of supervisors for eminent domain on february 26 of this year for the three easements and on able 20 for the two properties. so today we're asking you to hold this public hearing for the acquisition for the five properties and finds that it's in the public interest and necessity, that the project is

planned and located in an area most compatible with the most public good and least private injury, that the three easements and properties sought to be required is the best for the project and with that, john and i are happy to answer any questions. president chiu: colleagues, any questions for the representatives from the mta? supervisor david campos. supervisor campos: thank you. thank you to the mta for the presentation. let me begin by noting that i am supportive of this project. i look forward to the hearing and what is presented to us. i do have support for this project but i do want to make sure that we have a better sense of where the mta is in terms of its ability to manage

this project. again, i am supportive of it but since we are being asked to take some very important steps to finalize the project, i want to make sure that the mta has done everything it can to make sure that this project is managed well and i would simply reference back to a letter that was received earlier this year from the u.s. department of transportation, the federal transit administration. as you know, in that letter which was sent by the -- by leslie rogers who is a regional administrator of the federal transportation administration, that letter points out a number of things that quite frankly raise concerns about the mta's ability to manage this project and specifically, the letter says on page three, and i quote, the central subway project is a high risk project

located in a densely populated urban center, it is the largest most complex project ever undertaken by the sfmta, thus sfmta will need to practice risk in a diligent and comprehensive manner. there's also another section of the letter that talks about -- and this is a direct quote from the letter, the mta is concerned about the ability of the sfmta to maintain its equipment and system in a state of good repair and the letter goes on to say based on the fta review of the bus and rail plans and the 20-year financial plan, fta cannot at this time determine sfmta's ability to do this. this is from the letter. so as one who is supportive of this project and who has talked

in the last few months about the need for reforming the mta, i want to make sure that as we go forward with this project that we're also doing everything we can to make sure that the mta lives up to the expectations that all of us want to see this project completed have. so i'm wondering if you can speak to that. to the chair. >> yes. president chiu, supervisor campos, thank you for raising the fta approval letter and what was listed in that letter were items of concern raised by the fta that need to be mitigated and addressed prior to receipt of the full fund and grant agreement. since that letter, when it was received in january of 2010, the agency as a whole has been working very closely and

cooperatively with the federal transit administration to address every item in that letter and continues to meet with the fta monthly to resolve or mitigate each item in what is called a full fund and grant agreement p road map that has been developed in concert with the federal transit administration. some of the items you've raised like the risk management program we have implemented a very sophisticated risk management program that has identified over 100 elements in that program and the agency is in the process of addressing, relieving, mitigating or transferring some of those risk elements so that as a program matures and it migrates from final design into heavy civil construction, the risk process has been identified and

mitigations are put into place before the full fund and grant agreement. and in the other point that you raised on the state of good repair, the agency is in the forefront, has submitted a state of good repair plan to the federal transit administration addressing its -- the maintenance, the operation and the overhaul program of its bus and rail facilities. in addition to many other plans like the operating plan for the central subway, the fleet management plan and the financial plan for the program. these are all elements of -- that need to be submited and approved by the federal transit administration in advance of them approving the full fund and grant agreement. supervisor mirkarimi: you talked about a plan being in process. what does that mean that you noted this letter was sent in

january. this is almost august and so it's been quite some time and i'm wondering, has that plan been finalized and if not, what is the status of it and why has it taken so long for us to get to see a finalized plan in place? >> well, upon receipt of the approval letters and the final design, the agency has met with -- meets regularly with the federal transit administration both regionally and representatives from washington and we've worked a cooperative -- identified all of the elements in what we call a full fund and grant agreement road map and have worked with the fta to address many of the elements that were raised in the letter. and this process is something that is going to -- it's a cooperative effort with the agency and the fta and we

anticipate this process will be ongoing for the next year to year and a half and many of the elements of the plan have been checked off and approved by the fta like the project management plan, the risk management plan. and there's certain elements that have been submitted and are under review like the state of good repair plan. we have submitted a state of good repair plan. the fta has looked favorably on that plan and have given us indications that they like what the agency is doing in addressing the state of good repair and outlining a program in dealing with the state of good repair. the state of good repair plan will receive comments by the fta and will be submited in august of this year. supervisor mirkarimi:

supervisor campos: i think it's important for us to be diligent about what's happening with the mta. i don't think that we can have the certainty or the a insurance that this project is going to be completed on time or as planned unless we're also talking about making sure that the necessary reforms that have been outlined by the federal government are actually being put in place. i don't think you can talk about supporting this project and also not talk about the importance of mta reform. and so i can go through the specific letter and go item by item of whether or not you have done some of these things so let me ask it differently. are there items by the fta that you have not completed? >> every item that has been asked of the mta has been addressed and is in the process