could in fact lead to environmental impacts that have not been addressed by this e.i.r., it would seem to me that there is a reasonable argument that we have to take all steps following ceqa, that all the feasible means to prevent these future actions from happening, so on the issue of enforceability, one of the questions that comes to mind is how haven't we gone and received, tried to get their tore -- get declaratory relief that says these provisions are enforceable? it would seem to me if we want to have as complete a ceqa document as we can, we need to tie up loose ends so we prevent that possibility from happening. >> you're an amazing attorney but i'm not paid to be an attorney. if you're talking about declaratory relief and the

circumstances which the city would have standing even to ask me, again, that's a city attorney question. president chiu: i'll ask our city attorney to respond to the part of is it possibly to get a report that these es enforceable. >> we've looked into seeking declaratory relief or validation action and do not believe that is possible. supervisor campos: i would say i would be interested -- and i don't think this is the right forum to discuss that, but i would be interested in exploring that possibility more because, you know, the concept of the declaratory relief is to provide agencies or parties the opportunity to get a court to opine on issues of dispute like to the extent there is a dispute here. and so to the extent that we're going down the road approving

an e.i.r. as a complete and adequate document and there is that potential loose end, i do think that's a real concern and really calls into question the completeness of this review. [applause] president chiu: supervisor kim. supervisor kim: i have follow-up questions to what supervisor campos brought up because i'm hearing something different from our city attorneys. so in the planning department's response to appellants about the potential loss of rent controlled housing if the d.a. can't be enforced, the response was that because there is a development agreement that there is no loss of rent controlled units. but i thought i heard the city attorney mention that e.i.r.'s don't include socioeconomic impacts, so would the e.i.r. need to address this if this

were a possibility? >> deputy city attorney merletta burn through the. . they don't require you analyze the direct effects of social security -- socioeconomic changes but require you to analyze the environmental impacts that result from those changes. so if the change in the rent of the housing actually leads to some kind of physical effect on the environment due to displacement then we'd need to analyze those effects. it's an indirect effects question. supervisor kim: i would disagree with the planning department that if we were to find this were not enforceable, we then would have to go through another e.i.r. because it could be potentially that a developer could decide much later after the units had even been built they no longer had to comply with the d.a., right? isn't that possible that it could happen much after the

units are built and residents have moved in that either this current developer or a new developer could sue and say this isn't enforceable given some of the case law that's -- some of the rulings that have come down from state law. so then it would be too late. >> it this is under the assumption we would discover some way along the development process. [applause] >> deputy city attorney, i believe you're asking it's possible someone could sue us at any point along the development process for this project or including after the project is done, and i think you're correct. >> this is charles sullivan, city attorney's office. i know the d.a. approval is not before you today. i did want to just opponent out there are a number of things in the draft development agreement that address the things we have

done to bolster enforceability and most importantly in addition to talking about how the city would not approve this agreement without the nonapplicability to the cost of hawkins, we have every potential owner sign an assignment of asumings agreement and record against the property in addition to the development agreement all the protections that have been incorporated into this development agreement. so there is no way anybody could become an owner of this property without signing a contract directly with the city acknowledging that they don't -- they agree not to sue and that the -- that these provisions do not apply. they sign the document. supervisor kim: i was not going to bring up the d.a. because that's not what is up for vote but the adequacy of the e.i.r. now i'm hearing the e.i.r. would need to address replacement of -- or

displacement -- potential displacement and think there are legal questions in terms of the enforceability of the d.a. that's in question. >> by the way, colleagues, it's my understanding having spoken to the city attorney's office, obviously we've gotten some perspective on these legal questions but do know this is advice that's been provided to us in our capacities as elected officials and i just want to remind folks of that. supervisor campos. supervisor campos: i think this kind of discussion might be more appropriate perhaps in closed session to the extent that we're talking about legal positions that impact the city. but i do want to, for the record, point out what at least the case law, the two cases that i have read independently say about this. you have the embassy versus city of santa monica where the

court basically says that in that case you had a situation where there was an agreement between the city and the developer, and this is whether the court said -- what the court said, nor are we proceeded by the city citation to other statutes which waiver is specificallyly probated and the city accompanying that argument it is not prohibited and thus allowed. as we've seen the ellis act provides a contractual waiver is unenforceable. i mean, that's that case. and then you have the palmer versus city of los angeles case and again, it goes back to the issue of whether or not there is a waiver here that can happen. and this case raises concerns. so i don't think that we should delve bought -- into the specifics of the analysis but i think there are enough issues

here that, again, raise questions about the adequacy, completeness, and accuracy of the e.i.r. analysis which ultimately is what's before us. [applause] president chiu: in response to supervisor campos' comments, he was reading from the case law but probably think it's not appropriate for us to discuss the underlying legal arguments and how they might apply in this case but agree this might be a appropriate topic for a future closed session. supervisor elsbernd. supervisor elsbernd: to the president, supervisor campos or to the city attorney's office. the two cases you referred to, did those analyze the density bonus exemption in costa hawkins or did those analyze the waiver exemption in costa hawkins? and with the legislation that will be in front of us, the development agreement, is that the waiver or is it the density bonus exemption? supervisor campos: i don't know the extent to which we can

discuss this, but the problem, supervisor elsbernd is that there is no case that specifically addresses the issue before us where density bonus actually satisfies the exemption this is -- which the issue here which is there is no case that specifically addresses, how do you know what you're doing is in fact enforceable? supervisor elsbernd: when you said you wanted to put on the record these cases are the precedent, i wanted to be very clear, they're not the precedent because there is no precedent on this issue. and i think we agree on that point, there is no case law specifically on whether or not the density bonus exemption in costa hawkins is applicable. supervisor campos: that's the point. you're making my argument for me. because if that's the case, if there's no specific case on point, then there's no guarantee this assumption that the planning department is making is in fact accurate. which again goes to the adequacy of the e.i.r. supervisor elsbernd: you're making my argument for me but

saying those two cases you've cited are not on point. president chiu: if i have a concluding argument, my guess is every one of us colleagues as well as the two parties want to do everything we can to ensure the enforceability of these contract terms but the question is whether or we've got enough now under the d.a. cleggs, any additional questions? -- colleagues, any additional questions? planning department, do you have any final concluding comments? i know when i officially asked the question, i think i interrupted you in the middle 6 your presentation. and you have three minutes left if you want to use them. >> thank you, president chiu. one last issue that's been raised a few times that i'd like to address is the issue of the seismic capabilities of the existing towers.

i was explaining in the e.i.r. those towers that would remain on the project site and the seismic conditions of the existing buildings to remain would not be affected by the project. those towers are existing. the e.i.r. does, however, describe the risk of major earthquakes of the site but does not find these to be significant impact of new buildings and the existing towers that would remain would meet the applicable safety codes. the towers have been evaluated and were found to be sound. that concludes my presentation. we continue to believe that the e.i.r. is adequate and accurate. president chiu: supervisor mar. supervisor mar: thank you for the presentation. i have concerns there aren't reasonable alternatives considered in the e.i.r. and you brought up san francisco state and brotherhood way developments and i know the 19th avenue corridor study looked at the massive plan from

f.s. state from 2007-2020. i think there were only a couple paragraphs in the e.i.r. that considered that san francisco state is planning to grow from 20,000 students to 25,000 students in a short period of time. that's increasing about 25% of the student population so that's 5,000 new students. and as a former san francisco state faculty member, i know parkmerced very well because that's where we circle driving around to find parking and i know that gridlock and it increases in the number of students and about 700-plus faculty and staff will increase that gridlock as well. i'm just wondering why there wasn't more of an analysis of the creative arts building that's going to be built with 1,200 feet auditorium and a lot of other improvements that san francisco state is planning. i know you said they're not set in stone, but it's definitely something that san francisco state is planning to move towards as i talk to robert

corrigan and leroy morista, different officials of f.s. state but my sense is the e.i.r. should look carefully at the analysis of a neighboring institution like f.s. state with a very ambitious master plan that's going to increase expansion significantly and i think make the traffic analysis even more complex than it is. and the environmental illustrate pictures as well but i'll just ask that question to respond, mr. cooper. >> my response simply would be that we've incorporated all the growth that's projected under the master plan into our analysis of the traffic impact. president chiu: and knowing first hand how the traffic throw is from holloway as we circle to find parking, i know that will be significantly increased. i don't think the e.i.r. has that human and environmental impact as i read through it. i would say i was influenced by

my visit with a number of the residents of parkmerced last week in the rain but we walked through a couple of the garden apartments and also the towers, and i don't see a blighted, aging number of units -- >> thank you. applause. president chiu: i also have this question katherine moore and other, the 4-3 vote at the planning commission, why is demolition of sound housing of beautiful homes with shared garden backwards and a sense of community, why is it necessary to demolish those and that's why reasonable alternative of no demolition to me makes a lot of sense and why the e.i.r. to me, i have a lot of questions about it. that's my perspective. [applause. >> to me what you're responding to are the merits of the project rather than the environmental impact of the project as proposed which is what we analyzed. the e.i.r. does not make any

claims about the condition of the existing housing that's proposed for demolition, rather, it takes a description of the project which is the demolition and then analyzes the physical and environmental effects of that demolition. supervisor mar: i still feel the human element of generations of families that have been borne and raised in the area and -- think there rotham showed the shared space of the 1,538 units of the man people that live there and i see a human element and environmental element when you demolish those units and build high-rises which you're giving them options to move but there is a loss of community and loss of shared space that's there as well so i don't necessarily see that as a benefit sometimes to people, though i know that the project vision is saying that's a benefit for a more urban community. but i see something that's being lost and that's an

environmental impact and a human element as well. but thank you, mr. cooper. [applause] president chiu: supervisor elsbernd? supervisor elsbernd: to the planning department, one piece you haven't discussed that came up in a lot of the appellant's arguments and if you could elaborate further on what the e.i.r. does is that the environmental impact of living in a construction zone for 20 to 30 years. what protections are in place? we have the very -- you know, the very touching testimony about the children, both at the month tore sorry -- the montessori school but the babies that live at parkmerced. what is in place? what is analyzed about living in a construction zone for the next 30 years? >> as a general statement and as a e.i.r. details, there are

a lot of existing regulations in place and city ordinances that will significantly reduce those potential impacts. i would also suggest that over a 20-year construction period on the 152-acre site, those impacts would not occur in one place, rather, they would be moving from location to location as the phases develop throughout the project. so while we beautifully report all of the potential affects of the project and construction, those affects do not occur at one time or one location. as they do throughout the city whenever there are construction projects from place to place. president chiu: supervisor campos? supervisor campos: a couple quick questions. what's the lemmingt of the

project analyzed by the e.i.r.? >> as i stated previously, it's considered to be a 20-year project. however, that is not set in stone. and that could change significantly over time. supervisor campos: and so the reason i ask that question is that from reading the materials, it's also clear that there is this caveat in the executive summary it could be as much as 30 years? and so in trying to understand the completeness of the e.i.r., is there a difference in terms of environmental impacts between the length being 20 years versus 30 years? >> again, we don't know the length of time it would take to carry out the project, just in the same way we don't know how long it takes for a total buildout under any area plan the city may consider. so under the -- in the e.i.r., we analyze what is the most reasonable projection for how

long a project would take, but do try to take into account it could occur over a different period of time. supervisor campos: i think that's part of the problem i have in understanding how complete this analysis is, because to the extent you're saying there's a possibility the length of the project could be 30 years, but the e.i.r. only analyzes up to 20 years, then how complete is the analysis? that's the question. >> again, the length of time we have chosen depends on the topic area, and some of them are shorter and some of them are longer depending on the requirements on the analysis and also our desire to present the most conservative analysis for the impacts that might occur under each topic. supervisor campos: i know my colleagues -- >> i want to repeat something mr. cooper said in his original presentation. by analyzing primarily a

20-year period, if you concentrate construction impacts, whether it's dust or whether it's whatever in a more limited period, you're essentially focusing the impacts in a more concentrated way. if we did 30 years, we'd say, there's a little bit here and it's spread over 30 years and we do 20 years, we're basically saying on all the aspects of construction, this is the worst it could get and that's basically the approach that's been taken here to the extent the construction takes longer, the severity of the impacts will be less because it will be less concentrated. so that's the basic approach taken here and it's reflecting we're not -- this is not a city project. this is being built over time as part of a private development and not in a position to say with certainty it will 20b years, it will 30b years. we're saying because of that uncertainty, we're going to look at the impacts in their most concentrated, most acute

way on each topic so that we're not understanding the impacts. to the extent we've exaggerated that, the impacts would be less. supervisor campos: the problem with that is there's no way for us to know if indeed the impacts are the most severe within the first 20 years relative to the last 10 years because you haven't looked at the last 10 years. that's the issue. just a final question and i know my colleagues have other questions to ask. just trying to understand from -- in terms of your analysis, you have undered -- under the general plan there is a predisposition to disapprove the demolition applications of any sound buildings. so i'm trying to understand how that general section of the general plan was looked at and given that we are talking about demolition of, you know, a large number of units here.

>> you're asking a general plan question, this is an e.i.r. hearing. to the extent the general plan raises a physical impact it was analyzed, to the extent you're asking a general planned consistency question and would really be a question -- supervisor chiu: could you repeat the last question, it was hard to hear you. >> sorry. to the extent any kind of general plan consistency question raised issues of physical impacts, we addressed it in the e.i.r. i mean, there's a whole section of the e.i.r. that addresses that. to the extent you're asking how did we make a determination that a city policy against demolition of existing housing is arguably inconsistent with the housing element, among other city policies, that would be a finding you would make in

conjunction with the entitlement action. so we deal with in this -- and this hearing deals with properly physical impacts associated with the general planning and consistency, but the question of inconsistency per se. supervisor campos: i don't know i fully understand or agree with the point. but i get it. thank you. president chiu: i have one follow-up on that and want to recognize supervisor mirkarimi. there's been discussion whether the planning considered nondemolition alternatives and in section g of section 4, you talk about a couple alternatives that you considered and rejected, one of them being the infill development within the historic district which would have retained the majority of the existing buildings, and what you state is that you didn't evaluate this because it would have required the demolition of carports within the garden apartment courtyards and the construction of new residential

structures within the courtyards so you didn't evaluate that because it would require the demolition of car ports but you obviously evaluated alternatives that would have required the demolition of a lot of other housing. so how do you evaluate that? how do you reconcile that? >> as i was stating, alternatives are developed as part of an e.i.r. in order to address significant impacts that we have found. in this case we found the demolition as proposed under the project would have a significant impact on historic resource. the alternative you're speaking of was rejected for further consideration because it would still have the significant impact on that resource and therefore would not be a valid alternative to consider under the ceqa for the purposes of the alternatives analysis. president chiu: obviously what we're looking at as far as the preferred project involves significant demolition as well. >> correct.

and that demolition would have significant impacts. that's the alternatives we rejected would not ameliorate. president chiu. supervisor mirkarimi. supervisor mirkarimi: ceqa does not tell accumulative impact, does it? >> it does. supervisor myrrh keermy: -- supervisor mirkarimi: with a look at the impacts, that's being gauged at what level, a 20-year level? >> as i was stating earlier, normally accumulative impact analysis includes projects either already entitled or are in the pipeline, formally in the process of being considered for approval, in this case we went beyond that and included several projects that are perhaps a glimmer on someone's eyes on sites we know may be developed in the future.

therefore we conduct administrator conservative impact analysis than normally done. supervisor mirkarimi: you had the description to insist upon that particular analysis that goes beyond the standard requirement that ceqa compels, correct? >> correct. supervisor mirkarimi: could you not use that same discretion to extend it further apart from the discussion that's taking place. >> i don't understand the question. supervisor mirkarimi: you've preclued a certain yardstick about its accumulative impact, could you not continue that by using the same discretion to extend that assessment? >> we could, though the farther out you go in time the less you know about what might occur in the future so it would be extremely speculative to figure out what's accumulative analysis is 25 years down the line, for example. supervisor mirkarimi: relative to discussion the concentration has been impacted into a four-phase project within a 20-year period, that also is

speculative with regard to our ability to capture those accumulative impacts in that 20-year assessment. >> again, yes, we're trying to concentrate the impacts, that's correct. supervisor mirkarimi: but decision is at the planning department and city to extend that beyond that particular period, yes or no? yes. how, so, i think we would need to make a consideration about whether this project is being held to a different standard under our review of other projects. that's not normally how we review our projects under ceqa and san francisco. supervisor mirkarimi: thank you. president chiu: supervisor cohen. supervisor cohen: hi, ok. since a large part of the conversation that we're engaging in right now deals with general issues around housing and population, specifically displacement, i was curious to know if the analysis -- did the analysis find that any significant environmental impacts might arise due to socioeconomic

changes brought on by the proposed project? did the analysis find any significant environmental illustrate pictures that might arise due to the social and economic changes? >> the environmental analysis was on the physical and environmental impacts of the project. and we did not go from the other direction and try to figure out what the socioeconomic impacts would be that related to those effects. supervisor cohen: is that a normal -- >> yes. supervisor cohen: thank you. president chiu: supervisor kim [supervisor kim: thank you. i had some questions about the phasing -- or the construction phases. just to clarify, is part of the

purpose of an e.i.r. to adequately and accurately describe the proposed project? >> the e.i.r. requires an accurate description of the project in order to conduct a thorough analysis, correct analysis. supervisor kim: could you talk about the construction phases and how you feel that there's clarity in terms of what's going to happen? i understand that we can't talk about a certain time line because construction, there's always delays and unexpected issues and obstacles that come up, so i'm not asking about 20 years, 30 years, that's not one of my concerns but i'm wondering if you could describe a little bit about why you think the construction phases are clear in terms of what happens and in what order. >> i don't really think we have that information. that's something that would occurs a the project was being implemented. supervisor kim: