they would like staff to take those to the city attorney's office and make sure they are true to form. and they started their discussion on 309 modifications. and director rahaim was there and might want to elaborate. >> that summarizes it very well. thanks very much. clerk: ok, with that, we can go to item 3 under director's report. this would be the environmental -- the ero's response, environmental review officer's response, raised to the final environmental impact certification hearing. it's an informational item. >> big riker, department planning staff. the memo i prepared was

distributed last week. there's also copies on the table. as you can see in the memo, what i tried to focus on was the questions, not of the substance of what we would do, but of the procedural appropriateness or scope of the inquiry. and as i understood the questions, or at least as i tried to phrase it in responding, i heard three basic types of questions. one was what kind of further investigations are appropriate, especially in relation to project sponsor's objectives. the answer to that, i think, is pretty straight forward. if the questions are asking for further investigation in relation to a potential ceqa impact, either for more information to be more comfortable with the conclusion or even potentially changing that conclusion, in essence, i

don't think the project sponsor's objectives have any bearing on that inquiry. the inquiry could basically affect your conclusions in terms of ceqa findings. the second question was of a more general information request and that, i think, was of a much more ambiguous -- as i phrased it, to some people's chagrin, question. anything that has a potential link back to a ceqa conclusion, i think, is totally in order. obviously their's lots of information that is included for better or worse in the eir that is not strictly in the ceqa conclusion realm. and to the extent these questions are raised in eir hearings, we try to respond to the extent factual information is brought to our attention,

that we conclude was inaccurate. we correct it but also be clear we are correcting it not because it changes the conclusion, but just to have as complete information as we can. i think the area that i spoke to this the memo, in terms of alternatives, is a little -- i am not sure that i have expressed myself as well as i might have. i guess what i wanted to make sure was alternatives under ceqa are defined strictly in terms of speaking, addressing, and identifying the significant impact. and the only significant impact was structured as they were. however, what i attempted to articulate and at least feel is personally appropriate, even if there is an alternative that is

not strictly speaking inspired by a significant impact and that alternative were -- needed to be investigated in order to move forward with a version of the project that the commission felt was not encompassed in the alternatives, including the project in the eir, to me, that would be appropriate to add independent of the significance issue, just so you have ceqa clearance for whatever it is before you. what i was trying to emphasize in the memo is that particularly as you move into that realm, and not strictly in this is an area of potential impact that we have questions, i hi it becomes very important that you articulate so we can know how to respond and so that the record is clear as to what the basis is for asking for an additional alternative is. so, for example, if the basis is, we think the impacts were

greater in this area, or even if not greater, we feel there should be some version of the project that we want to actively consider, that's not within the range covered in the e.i.r., i think it's important that that be articulated, so we know what to do and the record don't look like it's an arbitrary request. the third area that i understood to be a question was once we come back with these materials, how are they distributed and circulated. and i -- my understanding of that is that obviously if we do this investigation and we find there are either new significant impacts, or new feasible mitigation measures, or new feasible alternatives related to significant impacts, that triggers recirculation of the eir. the second scenario is we do

this investigation and we don't change our ceqa conclusions, there is no prescriptive direction as to how that would be distributed. i suggest we basically would do what we do with publication of the c & r documents, we would do the 10 to 14 days so there's a reasonable opportunity to review the materials. rather than being without an opportunity to digest. since the hearing, we have tried to look into some of the specific substantive questions, commissioner sugaya committed two of the letters that were read into the letter as articulation of the concerns he was addressing. susan brand holly distributed a letter yesterday which you received, which commented not too favorably on my interpretation of things, and her own interpretations of the

proceedings two weeks ago, those are the only formal communications we have had since two week ago and there has been dialogue within the department as to how we would respond. clarifications on what i didn't communicate well either in the memo or here, or, you know, if we want to get into further clarifications as to the substance of the issues. president miguel: thank you. i have some public comment cards. susan brand holly, m.e.o. lawrence. >> good afternoon president miguel and members of the commission, i am susan brand holly representing historic knob hill. i appreciate the further

explanation about his memo which i did respond to yesterday and i hope you had a chance to receive it. as i understand it and the tape shows from the last hearing, the commission declined to certify the fairmont eir and then gave direction to staff what to do to fix it. i think where the disconnect is possibly between what the commission required, and as i understand the memo, his staff is indicating it's unclear whether project alternatives need to be analyzed. in fact, historic knob hill through myself and a lot of speakers clearly addressed why alternatives were needed, specifically because there may be significant environmental impacts that weren't adequately identified and the conclusions have not been adopted at this point by this commission, so there's a dispute and a lot of evidence that there are other significant impacts.

the eir identifies a potential significant impact in terms of 9 project's impact on the residential historic district and the mitigation required is future environmental review that should mitigate it. one thing that was raised, i recall commissioner sugaya commented on the draft eir and others did, too, you can't assume it's mitigated as significant. there's also analysis of the impact of the new tower on the current landmark. that's another area in which there's question. so what was requested by this commission is alternatives be considered including rehabilitation of the tower as opposed to the demolition and reconstruction. we also have presented as concerns that the project objective, in calling for demolition as an objective when really, it's a means to an end,

not a proper ceqa objective and there's case law to support that. and the description that doesn't really show you what the project will look like is inadequate. so fundamental problems. it should be clear from the action the commission already took that there's fundamental revisions that the eir needed, including additional alternatives. no question these all relate to environmental issues [buzzer] >> they are not beyond the scope of ceqa and you are not allowed to do more than the law requires. but all of these things relate to environmental issues, the historic resources, traffic and noise issues, as well. there were a lot of things raised. and as i understand what the commission did and a transcript of your hearing will she, there wag a lot of direction given to staff and that should be clarified busker.

president miguel: thank you. >> thank you. >> mr. miguel, did you call emil lawrence? president miguel: emil lawrence. >> my name is emil lawrence. good afternoon. i've been a resident in san francisco county for 41 years now. two and a half years ago, i had a problem with a tenant or landlord that did 15 abatements on asbestos without filing any proper permits. president miguel: excuse me, sir, are you commenting on this agenda item? >> am i what, sir? president miguel: we are on a particular agenda item. >> this is connected with the fairmont is what i understand. president miguel: is it. >> yes, sir, i will bring it in line. on 52-unit building i understood you could do asbestos abasements

without any proper permits and violation of federal laws under osha, asbestos is a deadly, deadly flake that you can't see, you can't taste, but you can breathe and once it gets into your lungs, it stays there until you die. if you look at the fairmont in terms of the tons of asbestos, i have seen no environmental report how that would be contained when san francisco has only one air quality man for the whole city. it's a major problem. i am a taxi driver in the city and county of san francisco. i go over that hill 15 times a day. in terms of the wind bursts and air quality, asbestos would be floating all over the city from that construction project because there is no system in place, in this county to comply with osha laws, in terms of placing signs in every room of

the hotel, telling them there's as best boss work going on, and also block by block, notifying them asbestos work is taking mace, also notifying every tourist that asbestos work is taking place r. any project that goes over the hill with the fairmont would be in violation of federal laws. not just one, but a multitude and based on the federal guidelines in which there would be no or total accountability on medical problems until the day that person died if he was afflicted with asbestos problems. if you breathe asbestos today, you don't come down with a problem for 10 or 15 years. and then everybody says you didn't breathe it at my place. [buzzer] i lived at 1650 octavia, owned by gerald dowd,

where he did knowingly, asbestos abasement and had the people living in the unit without proper personals and without notifying the city that asbestos work was taking place. i believe that's going to take place here at the fairmont if they attempt to demolish those two buildings in the back without federal controls [buzzer. >> i thank you for your time. one last thing is i submitted -- president miguel: thank you, leave them there. the secretary will take care of them. >> i have three left. >> thank you. president miguel: additional public comment on this item? >> sue hester, i want to supplement comments made by susan brand holly. i am the attorney for local 2. i have questions about the

directions that mr. wyco successes on page two. i do not think it appropriate for the commission to give direction on the alternatives at this point under any circumstances. the eir record was closed. it was not a certification of the eir. this commission may not discuss alternatives to the project as he seems to indicate. he -- i mean, i am reading what this paragraph that starts out, on the other hand, as questioning the commission for direction on what alternatives you want to be really actively considering. i don't think you can do that. what you said in your comments when you voted was what the deficiencies were, and there were clearly questions raised by the public about the inadequacies of the analysis on

a re-use alternative. that was picked up in the summary that commissioner sugaya did, and perhaps one of the other commissioners. i don't have the transcript in front of me. but that is a huge issue. the re-use of that facility was disregarded because, as mr. wyco basically applied, it didn't affect the tonga room. there's more than the tonga room at stake in this eir. the commissioners comments and public comments dealt with alternatives. i do not believe trolling for additional information from the commissioners is proper under ceqa. perhaps this was reviewed by the city attorney before this was sent out. i would actually be a little shocked if it had been. but i do not believe it is anywhere near acceptable for the

commission to be saying how you want to be dealing with alternatives, when the hearing is closed, thank you. president miguel: thank you. additional public comment on this item? if not, public comment is closed, commissioner antonini? commissioner antonini: , mr. wyco thank you for your comments. a couple of questions, i guess, but i just had some observations, i guess, i certainly think we all know how the ceqa process can be very long and expensive. but that's not the point. the point is to make sure we completely analyze the impacts from ceqa of a proposed project. and i guess my question is, obviously, the no project alternative makes total sense, or variants of the project that are, perhaps, somewhat smaller, code compliant, etc.

but i don't quite see why you would have to analyze an entirely different project in this case being the restoration, because, if, in fact, we went through the analysis, and we certified a particular report, this one or any other one, and then the project was approved, then it could come back and go through its own ceqa hearing at that time. maybe i don't follow what you are saying on that. maybe i can get a clarification on that. >> i think what you said is correct, and combining your question and miss hester's comment. the reason i thought that besides several commissioners articulated they wanted to see other alternatives, why i thought it was out of order because you are not only deadlocked in a 3-3 vote, but you also continued the matter. i am not the expert on

procedural whatever, but at least my understanding, and 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 tr