>> welcome back to the 5:00 p.m. special order related to all of the items that have to deal with treasure island. before we proceed, let me ask the supervisors, are there any comments that you would like to make? why do we not proceed to the hearing? before we get started, i have received a letter with a number

of issues that had to deal with notice. we are going to allow the council to use three minutes to make any arguments they wish to make regarding notice. we will give the city attorneys office a moment to respond. i would ask if you could please approach the podium. you have three minutes for an initial comments. >> thank you, president and members of the board. i am with the wagner llp. i represent the appellants in this appeal. i have raised two issues with regard to notice. there is the ability to move forward on the merits. various committees of the board have heard the substantive merits of the project.

with regards to notice, on june 1, just six days ago and just four business days ago, we were provided with a staff report and other substantive materials in support of project approval and the eir in the form of responses to the appeal document here. the planning and zoning law requires a 10-day notice of substantive materials and information regarding any project that would amend a general plan of zoning. the relevant case is on the environmental defense project. also, under the california environmental quality act, commissioners will proceed with any challenge by the board would

normally be limited to only those issues that are raised before the close of the public hearing on the project. that provision also states that if be notice provided by law is god-given or an opportunity to organize or respond to stipe given, then in the issue is available for challenge. on those two issues, we request that the board deliberate and make a decision to continue the substance of this appeal hearing to a later date until notice is required. also on procedural issues come up we have raised a third objection. under the administrative code, the city administrative code provides that while an eir appeal as a pending, the board

will not consider the approval of the project. they certified the eir on the 21st. during the appeal period, we could -- hold hearings. our clients with than file a timely appeal. even after the appeal was filed, the board would continue. we would consider approval of the project. >> thank you very much. let me ask the city attorney if you could respond. >> i am at the city attorneys office. i will try to tackle these one at a time. i think the appellant has confused the noticing requirements under state law. the notices are required. the purpose of those is to give

the public an opportunity to show up at a hearing and testified. we gave a 10-day required notice for the general plan with many required amendments. in advance of the land use committee hearings on this item. by and not quite sure what the appellants' noticing issue is in regard to ceqa. we made the comments and responses document available at least 10 days before the planning commitments certification of that action. they may be referring to the planning department's response to the appeal that was filed on the eir. the planning department practice is to at least a week before the

hearing to submit a response to the issues that the appellant has raised. i think that was done on tuesday because of the memorial day holiday. it was in the clerk's file and was made available to the board members and the public. the last issue concerns chapter 31 and what can be done during the course of the 20-day appeal window and what can be done after an actual appeal has been followed. i think the appellants miexed up the requirements. chapter 1 is very clear that when an appeal is pending, when it has been filed, no further action can be taken. there were actions taken during the 20-day appeal period. there were actions that were

taken in advance of an appeal being followed. this occurs all of the time in san francisco. we did receive an appeal. it was properly filed. after that, i believe there was one of land use committee hearing. there is nothing that prohibits the conduct of public hearings or informational hearings that the appeal has been filed. the only limitation is that the body who is conducting the hearing cannot take any action on the item. i think the appellants directly stated that. there was no action taken yesterday. there was a hearing on the development agreement. there was no action taken on the land use agreement. we forward it to the full board without recommendation. that is just a procedural matter

to begin -- bring it before the full board today. >> any further questions on this issue? if not, why not receive -- proceed back to the appellants for 15 minutes of the presentation. >> thank you, president and members of the board. we are moving into the merits of phase. once again, wagner, on behalf of the appellants in this case, the golden gate audubon society, while the equity, kennth master,

we are here today to address the certification by the planning commission eir. our clients object to the planning committee certification on a variety of grounds. the fundamental cases for the objection presented today really goes to the heart of ceqa's basic purposes. this is set forth as the basic purposes of ceqa are to inform government decision makers and the public about the intentional significant environmental effect of proposed activities and identify the ways that the environmental damage can be reduced, avoid significant damage to the environment by

requiring changes to the projects by using mitigation measures and disclosing to the public the reasons why government agencies and prove the project in the manner that it chose if significant effects are involved. if the eir before you fails to satisfy the basic purposes of ceqa. >> the first issue that we raised on appeal is detailed in the appeal letter that has been presented to the board today. what is before the board for approvalis not a project that was analyzed were disclosed in the eir. the eir by its own title is the treasure island and yerba buena island redevelopment plan project.

after the draft was circulated and even after responses to comments were submitted, on april 12 of 2011, the planning commission came forward with a memorandum notifying the planning commission that the project was no longer a redevelopment plan. instead, it was a special use district area plan not to be financed through the redevelopment law, but through the air infrastructure financing districts. none of these approvals were noticed in the eir that was circulated to the public. the changes to the project have resulted in a recommendation by staff to eliminate 400 units of affordable housing for the project in order to make up for the projected shortfall in funding that would occur due to

the city abandonment of the proposed redevelopment project. ceqa guidelines 15124 requires them to have a list of all of the permits and approvals that are being proposed. this eir does not have that. a ceqa guideline states that if the agency is proposing to use a eir for a prior project proposal but for a different project approval, the agency will start not with a memorandum at the end of the process and asking for it to be approved, it will instead start from the beginning of the ceqa process with an initial study and recirculation of the eir for the projects of that the public can reconsider the

project proposal and respond through ceqa's mandatory public comment period on a draft eir. with regards to changes that have been made, the financing system that has been proposed is potentially untested in the state of california. infrastructure financing districts have rarely been used. we submitted to the city and independent economists analysis from the san francisco state university. they have revealed -- review the new plan. there are serious concerns about the objections that have been made because of the way the infrastructure financing district's work. also, because of the update to the financial analysis that has been done has failed to take into account the recent trends

in property prices. down 40% since 2006. the staff memorandum that is now proposed has said that not only is what staff proposing to do one alternative when they come forward, but there are at least three other alternatives that have various trade-offs in terms of environmental impacts and social impacts. none of those alternatives or the staff troy's has been presented to the public in a recirculated eir. because the land-use map for the project has changed, the number of units have not changed, it is ok to certify the eir development project. they approved a special use district area plan and

infrastructure plan that does not involve any redevelopment plan. the relevant case on the issue, save our neighborhood says whether they question whether the projects are the same or different is a question of law is to be determined by the court under the totality of the circumstance. the appellants admit the changes that have been made in the totality of the circumstances that these projects are not the same and the eir must be recirculated. the project eir is not the project eir. this is cloaked in a program. this board is being announced to approve it. in terms of our challenge on this question, staff has said that the choice of what kind of eir to prepare is up to the lead

agency's discretion. fair enough. they do not dispute whether a lead agency could choose. what appellants do dispute is that the eir that has been presented as woefully inadequate at providing the level of detail that is required for a project level analysis. the documents that have been presented today represent only a general plan changes and other very high above all approvals of the conceptual design. the disposition and development agreement that is before the city at this time only calls for or approves a conceptual level planned after the approval with four project level

major subdivisions being brought forward. those are not described anywhere in the eir where their impacts are not analyze. all of the later of facts that filter out after those subdivisions that do not exist also have not been developed. the disposition and development agreement itself says that the conceptual plan could change. as a feature information comes forward. meaning that even the major phase is being proposed are not assured to be consistent with the conceptual level planning being presented today. all of these indications indicate that this is only a program eir. it cannot be certified as a document. the difference is significant.

this approves a project-level eir. no challenges within 830-day period. that eir would be resumed by a lot to resume a project level analysis. the effect of that is a much higher bar for the city to require environmental review of new information that may come forward about details. instead of having a tiered environment to review process, the only time it would be required is if ceqa's higher bar is presented. all of this is reflected in the document that staff has been presented. all of the letters have been cemented by the fire department, san francisco municipal transit authority, the

united states coast guard. they all demonstrate that none of them understand the project level of this redevelopment, the special use district project. another problem is that the product description they have been given is fundamentally an unstable. the fundamental legislation that allows the transfers of entitlement and trust from treasure island to yerba buena island are pursuant to legislative authorizations from the state legislature that expressly says that it expects development of the treasure island will move forward as a redevelopment plan. that redevelopment plan would use the authorities under redevelopment law to increase the amount of affordable housing available. instead, what is happening now w