be a significant and adverse shadow impact on city parks and establish objective criteria for said parks. in so doing, in 1989 both of your commissioners but most importantly for the planning commission, adopted that in your 1989 memo which is what is the subject of item number one on your calendar this afternoon. that memorandum, which you adopted, actually set objective criteria for what was adverse and significant. there is flexibility. there is a mechanism where both of your commissions can meet and determine that a particular shadow is not adverse and significant, that it moves across a park in a very quick period of time, that it shadows a very small portion of the park as long as it is under the cumulative limits. i believe that a fair reading and indeed george agnos's opinion of 1984 do not allow

these bodies to piecemeal change those ultimate cumulative limits . because that memorandum by definition said that anything above those limits was adverse and significant. that is the heart of this argument. i do believe that ms. hester is correct that even if you were to go about changing the cumulative limits, which i do not think is in your power, would you still have to do comprehensive environmental analysis of that and could not do it in a piecemeal fashion. that concludes my comments. i hope you will take them seriously. thank you, commissioners. >> thank you. is there any additional public comment? seeing none, public comment is losed. -- closed. >> i just wanted to ask staff to clarify a couple of things about what's in front of you and about the issue of 20% and 14%. >> thank you.

kevin guy with planning staff. correct. the issue of the existing amount of shadow on the park was a big part of the information in the 1989 memo was that when into coming to conclusion about which park should be set as zero tolerance parks or parks would could accept no increase in absolute cumulative limits of shadow but through further analysis specific to the now gene friend rec center, it was determined it was erroneously listed as one of those park, smaller park of less than two acres that had an existing shadow load of greater than 20% and, therefore, placed in that no new additional shadows should be allowed categories. essentially the '89 memo is based on erroneous conclusion. the actions before you today would be to -- because the 1989 memo was essentially a policy document that was jointly adopted by both of those commissions to provide guidance

as to what was determined to be adverse or significant in terms of new shadow, the action before you today is a request to consider amending your own jointly adopted memo to basically change the amount of shadow and ott gene friend rec center and also consider whether or not to sort of look at correcting the error of gene friend being improperly listed in this category of more heavily shadowed small park. there's also a third action that wasn't previously mentioned that could be an item for discussion if this commission or these commissions wish to pursue is set future process in place if we find there's been similarities in the amount of existing shadow that existed from 1989 and that is to basically identify that hearings to determine adverse impact of new shadow could go through sequential rather than joint hearing process. it would still need to go before

rec park and the planning commissions, but it would not need to take place at a joint hearing. i should also mention the '89 memo unfortunately doesn't provide a lot of good guidance of how to assess the adverse or significant impact of shadow on small, less shadowed parks. so the amendment wording before you if you choose to take this up would be to direct future projects that are small, less shadowed park, that projects cree nate shadow impact would just basically be analyzed based on the call tate tive criteria that is already in the '89 memo. so that is size, duration of the shadow area of which the shadow falls and also can be considered the public good created by the shadow casting building if there is a sgget public good that is the result of that project that can also be waived. i just wanted to summarize the actions before you. i'm available for questions as well.

>> thank you. commissioner antonini? >> thank you, mr. guy. i think you have answered my question. it would appear that in rehearing what you said, no additional shadow provision would have to be a park that was shaded over 20% of the time, less than two acres. in fact from staff report, the shadow impact is 14% at the present time so it doesn't apply. so the language in regards to what is now gene friend park was misstated in the earlier documents. >> that's our understanding, that is actually only 14% existing shadow load, not 20% greater as stated in the '89 memo. >> right. so really i'm not sure that this is really -- it is before us because we do, i guess, have to make the correction and we do have to allow for this increase

in the shadow for this particular park, even though it's very, very minimal. is that what i'm hearing? >> yes. >> i'm very much in favor of this if there ever was a project that would be beneficial. in fact, in terms of shadow, it said the impact is very negligible as been pointed out by project sponsor, and the most significant part of this negligible impabble would be july 2, which by my calculations is usually the very heart of the fog season, in which most cases there wouldn't be any sunlight to shade -- to cause a shadow anyway on the second of august. usually it's heaviest between july 15th and about the end of august. so this is pretty much the middle of it. even if there were, it's at 7:30 at night so it's getting pretty low on the horizon and i think the additional benefits to be

gained. but certainly justify the small increase that's being allowed here for this project. and also i think it's good to have discretion in instances like this because sometimes it could be a more significant situation where not correcting problems in the language from before or interpreting things too rigidly could cause us to not consider projects that might be very beneficial. this one certainly is one of those. >> commissioner moore? >> i would like to ask mr. guy to perhaps for the benefit of the public explain who we interpreted the mentioned area you're quoting, particularly in the law, majority of people of the law that cannot be amended. i find at least -- i'm not

trying to question your integrity on this -- i'm trying it a little difficult to sit in this meeting and be told there has been some error and then it also being suggested to consider changing it. i believe that the law in its original intent was created to gather the open design plan and govern the city in a more equitable, forward-looking way that addressed the public interest concerns and by just saying you can just vote to do it differently, i believe at a minimum this entire subject matter would go back to the voters. it is really decided by the voters and i think we're only a fraction of a small part irrespective of our own personal beliefs that are here to present the public interest and public voice. the fact this is 22 years later does not enable any of us as far as i understand san francisco to see if we need another discussion to determine what applies or doesn't apply.

my question to you at the moment, which discovered the error, who put it to record and who informs the rest of the public that this error would override the previous law and allow us to use different criteria. it's just a procedural question more than anything else. >> yes, thank you. in terms of how the error was discovered, it was basically in doing the details of the shadow analysis for this particular project. the -- mr. noble is the swloid prepared the shadow analysis specific to looking at the impacts of this project but in doing so calculated the existing amount of shadow load on the gene friend rec center because it is relevant to our analysis that we present to the commission. >> wouldn't this actually by way of procedure go back to the university of california, who did the original assessment rather than someone who has personal gain to say something which he or she is asked to say? >> that can certainly be a

policy direction of this commission. i think as a general matter of course when we're looking at shadow impact on whether or not a project or park was included in the 1989 memo, as with other technical studies for environmental review, we accept technical study in the area of shadow as we do for traffic or air quality or variety of other traffic areas. >> the interesting thing for me and i'm really conversing with the other commissioners here, i think the issue of public benefit, public really important projects and shadow is in itself a great policy discussion to have. does this particular project fall within that category? i was actually a little bit taken back and i'm really speaking off the cuff here in direction to a public comment that the twitter folks would really qualify for this project. i'm a little bit taken back by that. i know the salaries of the twitter folks and the benefits

by which they live and i don't think they're quite in line with what many of us understand as the s.r.o.-type hougs which is implied here. so to interpret the project all of a sudden as a twitter qualifying, although i think the speaker amended his comment a little later, kind of pushes me really a little bit over the edge. to say this is wonderful. this is only in the public interest driven. i would say anybody who wants to build in that block would have to re-examine the building and bring it in compliance it applies with those laws and height limits that are here to govern our decision making. >> commissioner miguel? commissioner moore: -- >> commissioner miguel: i appreciate the comments made by ms. hester, mr. maher and the

basic arguments. and i appreciate all of the work they did on prop k. and i think prop k works. and i think the city as commissioner moore says benefits from legislation such as prop k. but i would like to ask questions of the city attorney, if i may, because to me a great deal of this revolves around the fact that legislation can have mistakes in the manner in which it's written. and i know all three of the people to whom i referred in the audience have been involved for many, many years with legislation and have seen legislation that contains errors. to me, this is revolving around the correction of an error to a good extent. comment? >> deputy city attorney burns. fs my understanding this is not regarding an error in the

legislation but rather there was an error in the memo that went with the docket in 1989 by these bodies jointly. and that the correction being proposed today by staff is not to change the standard of 20% that was applied to these parks but rather to correct that this park individually does not meet that standard. staff, of course, can speak to you more -- in more detail about the particular facts presented here but my understanding is this is not correcting any error in prop k itself or in the standards established in the memo but rather that this project, a calculation error was made including this project as one of the one that's had 20% shadow coverage in the time prop k was passed. >> thank you. that's exactly the explanation i wanted. we are not touching prop k legislation. i just wanted to make sha very, very clear. what we are touching on this is an action that was jointly taken by the two commissions. and on that basis i think we can

correct their own errors. >> commissioner? >> i wanted thank the city attorney for making that determination because i think that -- the issue is in the original prop k talks about the significance and significance set in the '89 memo at shading of 20% and this park does not meet that threshold. so the fact the incremental shadow increase, which is as the right building 3 .06 and now 3 .04 is not significant, based upon that and based upon the perceived error made in the legislation. so it makes a lot of sense to me. in the priority principles of what we're trying to create, affordable housing is one of the things we talked about and i know this is not affordable housing, but affordable by design with five units. when you say the difference in the height, which still would cause a shadow. as the building could still cause a shadow but five units

versus three affordable units, and 23 units total, all of which are affordable at some level is a pretty significant benefit and a car, which is something we've been pushing for, and car share. i would think from the priority principles and general plan and housing element we support and our first priority as planning commission that project would meet those thresholds, particularly given the fact the shadow is actually below the 20% threshold and the building would also cause net no shadow. so i think those issues for me makes this project supportable and i would just offer that other project sponsor this kind of project is what we've been saying that we wanted and we have said language in eastern neighborhoods and other plans, affordable by design. if this project were in excess of 20% shadow then i think we

have a different conversation. stouppeded like this park was erroneously added to the list. possibly because of the size of the park. maybe perception it might be at 20%. the other part i thought was interesting in the report continue sounds like the shadow is on the basketball court. i grew up playing basketball in my backyard. if you know anything, you do not want the sun shining on when you play basketball because it's a very hot, rigorous, grueling sport. if the shadow is on that portion of the property, which it is, it seems to me it's actually of a public benefit as opposed to detriment. >> commissioner moore? commissioner moore: i want to ask a clarification, perhaps mr. guy, how we dealt with the project i voted for and i was later on reminded exactly of what i did. can you remind me as to whether or not that park falls into the same category as the gene friend park or is it a different situation? >> don't recall your specific action.

>> i think it was 20%. >> yes, bow decker park does fall into that category of parks that are essentially zero tolerance for new shadows. it was similar action that the that time being requested that the commissions jointly go back and sort of relook at the qualitative criteria of the impacts on the specific project including considering the public good of that project, which was affordable hougs with ground park grocery store and consider whether or not there's merit to amend the policy document, a memo that is intended to serve as a guideline for 295. >> this is an extremely difficult situation. i appreciated commissioner borden's comments. i would like to say in rebuttal the fact that the park in this part of the city are larger is the fact all housing, which is serving these parks, doesn't have any, zero-zero amenities, no roof top gardens, balconies, no courtyards.

so anything in addition to the five dwelling units which are so small, the parks by general city standards barely meet what is required per person per open space. so i just want to throw that out because the park in its own right is not oversized but meeting a need which is far more severe than probably many of us can appreciate. so i just want to put that into the room as one other thought to think about. and i just wanted to add to that, that this is one of the areas that this is one of the areas most underserved that relates to open space and density. one of the issues i wanted to raise to the developer and i know someone here from bridge was saying they may be engaged in the marketing is there have been a lot of context with the people along that block area as it relates to the rec center. i think if you can let people know in advance they're moving adjacent to the rec center where

there are children at play because some of the complaints that people get is that the noise of children playing is disturbing to them. so i think that that's a real unfortunate situation that's developed when we see new people come into a neighborhood and there have been existing residents for a number of years who are underserved by open space and who really need a place to take their children to play, that they may have that excess sound. so if you could inform people, that would be great. commissioner antonini? commissioner antonini: i would like to move to approve a resolution -- adoption of a resolution raising the cumulative shadow limit for gene friend recreational center. do we have to state a specific number for that amount in this resolution? >> yes. the resolution is actually crafted to allow an increase in

the budget sufficient to -- that would be efficient to accommodate the additional shadow from the project. if i could just make one quick clarification, and this was touched upon by miss borden, there are actually only two action that's would be before you potentially as to increase the shadow budget for the specific park and remove the specific park to correct the error that is currently shadowed more than 20%. the last item i mentioned to you previously was an error about making a sort of larger process change for future parks in this circumstance. so if you're inclined to approve the motion, we would delight any language related to the larger process change. commissioner antonini: so my motion is then inclusive of both raising the shadow allotment and also correcting the error that had overstated the existing shadow situation at gene friend park. >> right. you can take those two actions

today based on the way the item that is noticed to the public. >> and those can be combined in this motion? >> correct. 12k3w4r thank you. that is a motion. >> thank you. >> commissioner sugaya? >> seconded. >> sorry. i jumped ahead of the game. >> it seemed a little backwards to me. if there was a rem dumb that everyone, both commissions agreed upon at one point and error found in that memorandum, you would think we would have the memorandum before us to consider prior to adopting any changes to it with respect to one specific project. so it would seem we should have had a prior hearing to this one in order to be able to consider what staff had discovered through, i might add, a consultant hired by the project sponsor, i believe.

therefore we had no particular verification of the particular study i'm not questioning says what it does say and we actually have this condition that resulted in the interpretation of an error. so i think from that standpoint that we probably should have had something before us and in fact we do not have the memo itself in our packets anyway, to be able to say that this is an error and whatnot, i don't have anything to base my decision on. so i can't vote for the motion. as a substitute motion, however, if i can get any support on this, i would like to make a motion to continue this particular hearing and have staff reschedule a hearing for us to consider the actual -- the

actual issue which is this part -- it's part of -- we're making two motions, right? one is to allow the increased shadow? >> commissioner, there's actually a resolution before you to form two consolidated actions into one and raise the budget and then direct the error in the memo. there's a motion later on in the agenda to make a finding about whether or not the shadow is adverse to the use of the park. >> i would like to continue the hearing just so we can consider the issue separately from the project proposal. >> second on that. >> commissioners, before you is a motion for continuance which takes precedent over the motion on the floor. commissioners, you do have to at

least consider that motion before you move forward on the other motion that's on the floor. and commissioner sugaya, do you have a date you would propose for this continuance? commissioner sugaya: no, i think it's first available. >> for the planning commission, that would be in june. so commissioners, on a motion for continuance of this item to june 9, i believe it is. >> i'll call roll for the planning commission for motion on continuance of june 9th -- [roll call] that motion fails on a vote of 2456 with commissioners antonini, borden, fong, miguel and olague voting against. that motion again has failed and

the prior motion is still on the floor. commissioner moore, is there an ability to comment outside of this motion? i think it is very difficult for me to consider tying these two things together. i think anything permanent increase in shadow limits on this particular park would leave it open to wide speculation for anything else that happens surrounding it. everybody else would come because the general lawn in that area is wide open for people who see the parks and many other wonderful things. most and foremost is my responsibility to the people who live there and leave the park as shadow limits with no further modifications to that. so i could never pull those two motions together in the first place. commissioner borden? >> i would say i would support a substitute motion that separated the actions. i do think there are ramifications to -- even though that park was erroneously put on

the list, i think we would like to talk about the ramifications of the increase of changing that element of the memo. i recognize it's a mistake and shouldn't have been a mistake but knowing what we know now, i think it would make sense to consider this project and i would support raising the cumulative limit for this project but i would want a separate calendar item to talk about raising that park, you know, looking at what we zoned in that area and what would be possible. i do -- i do think it's important to think about it from that standpoint. again, i recognize there was an erroneous mistake but the truth is, we don't have the memo in front of us. i did look through my packet. i'm not saying anyone -- i'm not accusing anyone of anything. i'm just saying i don't have that memo. it would be advantageous to have that before making the decision. i make a substitute motion to approve the project and raise the limit to .44% for this one project and, like i said, we can deal with the memo correction later. >> second.

>> commissioner sugaya? >> commissioner sugaya sclon yes, that sounds good. but i had -- because then that would raise the issue, i think -- i'm trying to understand this a little bit more. so we're increasing at .44 for this specific project and saying that the memo was in error for having categorized this in, you know, in an erroneous way. that raises the limit to some percent now. is that the absolute limit or is there still leeway for increasing shadow on this park? or is that the intent of commissioner borden's substitute motion? >> pending my substitute motion is only to increase the shadow for the advantage we talked in this project. it is not to make any further statement by other all-cumulative shadow impacts.

>> what i want to know -- >> talking with the attorney here, perhaps stand up and perhaps answer the questions. >> my question was with the increase of .44, that takes the shadow limit in this park to some x percent. >> correct. >> is that now the absolute limit or does this park still have leeway? >> that's correct. if that action were approved, that would become the new absolute limit for this park, and your later action on the motion if that were to be approved, that would actually die that increase budget specifically to this project. >> so we're saying with project. >> so we set with his projects approval and the other motions, the other projects that came along that would cause even more of a shadow increment, would not be there? >> you would be allocating that

for this specific project. >> thank you. >> you may need some more of that. what we're doing is a little bit correct with what has been found. for the purpose of the session, i am very confident. this is a very significant one, and this is accurate, and this is well below the 20% that would be considered. we raise the allotment for this project, and another project comes forward, and again, this has not brought this even close to 20%. is it possible that the other projects could be heard, and we would allow the shadowing