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: 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 o