size and border from the very sight went through that mesh. in spite of the safety precautions, it was not enough. one block away, at 20-30 alto, the building was undermined by a border and have to be removed. four years ago, he rocks from a landslide ended up in restaurants and cause the relocation of many tenants in buildings nearby. there is a history of slope instability here. there is clearly a project in the -- i support the appeal. president chiu: are there any other speakers on behalf of the appellant? ok. at this time, why don't we go to planning? >> good evening. i am don lewis. with the planning department. you have received our memo in.

after careful consideration, the concerns raised in the letter, the department continues to find the project as exempt. the decision before the board is to of all the department's issuing of a general exclusion and the now i -- and deny the appeal and go to a review. the use of a gre, previous proposals, and piecemeal review. there is a general rule that a sequel -- this sequel applies only to products that have a significant affect on the environment. projects with no such potential can be excluded. the proposed subdivision concluded there are no associations with the project that suggest the significant environmental effects.

the project will have no potential significant affects. there are no unusual circumstances associated with this project. subdivision of a lot would not be considered an unusual circumstance. the likelihood of the project's sponsors defining a non-profit par selby -- parcel b was prepared by john sanger on august 26. they both withdrew their appeal on september 16 because of this. the fact that there have been a number of past proposals is not relevant to the review of the current project. the current application is for lot subdivision to create two separate lot.

if another development is proposed, additional review would be required as well as review by the department of building inspection. past and to technical investigations would be available for use by dbi during its review. it would also require geotechnical affirmation. in some circumstances, there were be a panel made up of gbi review it staff to ensure the safe construction. at this time, no construction or development is proposed. ceqa prohibits environmental review for large projects and many little projects that have little environmental review on the environment but cumulatively could have major impacts. the -- the commission finds that this does not cost too piecemeal development under ceqa because the department has not received any plans regarding new construction.

in conclusion, the department finds that the proposed project would have no significant effect on the environment and fits within the gre requirements for ceqa. the department recommends that the board of told the gre -- uphold the gre. president chiu: the appellant raise the argument that and section 3 of 5 -- 305, you can issue an exemption if the slope is smaller than 20%. if it is more than that, it requires more than in -- it requires more and are meant to review. we are talking about a slow more than three times that. >> in yes. there are three3 -- 33 category

of exemption for ceqa. this project did not hear -- an eir would be required for the subdivision. ceqa offers a general exclusion that says if there is no potential for significant effects on the environment, then they can be excluded from ceqa review. president chiu: the suggestion that if you have a slow > 20%, that is a major alteration. that does not mean anything to you. >> the reason that class 15 was not used is there is a presumption of development associated with that class. we have no the bomb a proposal before us, as there was in 1998. it would be purely speculative to assume some sort of development.

there is nothing at this point. president chiu: let me address something that was just raised. you are saying that you do not see any environmental impact as a result of this subdivision. we just heard testimony from the geothermal experts to suggest that if we subdivide this, the stability of one lot depends on the other and that it are interlinked. if we were to take those facts as true, he does that not create issues from your perspective with regard to environmental review. >> he is assuming there would be no access. no work done. once you subdivide, you would have no access whatsoever to the other subdivision. right now, we have got the same ownership proposed for the lot and dbi would not lead developing go forward if the law

was not secure and safe. president chiu: i appreciate that, but let's say we were to put this forward. the subdivided lots could have two different owners, right? then they would be under control of the same property owner. >> that does not mean development would go forward. there is going to be an barman to review for any development that comes forward on that site. and the planning department and dbi would not allow that to go forward if it were not safe. president chiu: how do you respond to the case law that was cited. the california case law that cited the need to take into account the cumulative actions. you cannot subdivide and sliced up minor parts of a project and that you need to consider the entire impact. >> right now, we do not have a project. one of the cases that was cited

was the extension of a sewer line. assuming that there would be development at the end of the sewer line, otherwise there'd be no point in extending it. you can speculate all you want about what could possibly happen on the developable parcels, but there is nothing before us at this time to rid president chiu: this is a hill that has had a history of landslides over the past couple of decades. if we subdivide the slot and the properties are owned by different owners, if we do not have a guarantee that one owner will assist another if it wants to develop the lot. >> we do have a guarantee that ceqa will go forward with any proposal that is put before us. if it is found on developable -- undevelopeable, and there will

be no project approved. supervisor campos: i am trying to understand what the test is in terms of understanding whether or not there is an exception here. is it a test that there is no environmental impact or that there is potential for environmental impact? those are different things. seems to me that to the extent you are saying potential, that is a somewhat different analysis. i'm wondering if you can speak to that. >> they are assuming some form of development. we know not what. therefore, their interpretation is different from ours. class 15 was not used because there was no development proposal at this time. any future development proposal would go through the ceqa process. supervisor campos: what about the point they made that you are not allowed to engage in that kind of a piecemeal analysis.

if the whole point of ceqa is that you cannot break up a in project and -- in two different faces. that you have to look at it collectively. what about that point that the maid? >> we are not assuming the same assumptions that she is. that this is piecemmealing. supervisor campos: going back to what president chiu is saying, is this is sort of commonsensical view of this property and looking at this picture and the testimony of the export, i am try to understand how looking at the picture, from common sense, the planning department and say there is no potential for any environmental impact. when you look at that slope and hill, i am trying to understand

what your reasoning is. >> we are looking at this as purely a subdivision of a lot. we are not looking at this as development, because the development proposal is not before us. when it is, it will be reviewed under ceqa. supervisor campos: my sense is that they have tried to get this kind of approval in the past. not once, but a couple of times. what is different between every time that this has been attempted in the past and the planning a department has said no. what is different about today than was previously cited and when the planning department said no. i assume that the slope and the physical characteristics in of the location have not changed that much. i am trying to understand what the difference is.

>> there was a development proposal in 1984. an eir was done on a 12-story units on the time. a project was submitted for environmental review in 1995. the letters of 1998 -- the 1995 application was still open. the developer was not being responsive to the department's concerns. there was a development proposal. first, they wanted to do a four- story live-work building on one parcel and a single-family home on another parcel. then they changed their minds and decided in january that it wanted a two-lot subdivision

with a portion of the lot for townhomes. in 1998, the revised the project again to make a three-lot subdivision and development of lower calhoun terrorist as a single-family home. the department was dealing with development proposals throughout the process. president chiu: i want to make one comment. it was interesting how, for this analysis, you do not refer to the 20% slope, but in 1998, reading your own the karmas letter, it says that while it is true that minor projects are exempt from ceqa, this one has over 20% slope so we are required to review it. since the proposal raises slope stability issues and is linked to future development, the department determines that the environmental review should analyze both the subdivision and

any proposed development as one project. >> that is true because there is -- there was a development proposal at that time. they're looking at the subdivision and development proposals at the same time. and development was not going to be under a categorical exemption at that time. development that is proposed in the future will not be approved under a category of exemption. president chiu: a thank-you for the position of the department. why don't we move to the project sponsor? you want to do the subdivision. was to the subdivision. -- let's do the subdivision.

>> good evening. i am a city and county surveyor. we received this application in december of 2007. in we deemed that the application so amenable in january of 2008. have we got a report from the department of building inspection in december of 2008. we granted tenderable -- we granted tentative approval in june of 2011. we have no information on any further developments. as far as we are concerned, it is taking one parcel and creating two parcels out of it. we are in favor of moving the subdivision forward.

president chiu: to you think it's possible the developer learned his lesson at this point? the move forward before and that did not get through. now they're doing this piecemeal so they are getting the approval they need? collapse i think would reserve comment on that, but what planning is trying to say is that whether there is a development that happens or not, it is still going to be looked at. dbi and planning, i cannot imagine that anything is going to be built there that does not meet stringent city guidelines that are already in place. president chiu: thank you. any other questions to planning? why don't we hear from the project sponsor? is the project sponsor represented here?

ok. i thought the project sponsor was here. what do we hear from many members of the public who wish to support the project sponsor? seeing none, what we hear from any final comments from the appellants. you of to three minutes for appeal. >> do i have three minutes for each subject or three minutes total tax -- three minutes total? president chiu: you have six minutes total. >> that is plenty of time. ok. going back to the ceqa categorical exemption that we all know does not apply here. you're planning staff has set a couple of things that are blatantly incorrect, in just not

correct. if you look at -- let me find this other thing. 15061 of ceqa guidelines, a list things that are exempt because they do not have an impact. one of the sections, section e2 talks about categorical exemptions. those are subject to exception for unusual circumstances, etc. your staff is telling you that there are no unusual circumstances here. it is also calling this a categorical exemption and exclusion. it is not a categorical exemption. therefore, unusual circumstances -- that is not part of what you have to find. you probably could because this is a constraint lot. unusual circumstances do not apply.

this is a b2 categorical exemption. this is day 3. the general rule exemption applies. where this is referred to everywhere else in california is the common sense exemption. common sense tells you that a particular product has no possible environmental impact. supervisor campos asked what the question was, whether it was a possibility of impact. in that is what the common sense exemption he says. you have got to find, with certainty, there is no possible environmental impact. that is a much higher standard than a categorical exemption. in this case, even the categorical exemption cannot be met. that is conceded by staff. he said the product does not fit a category of exemption because it has such a high slope, but you can say with certainty there is no impact, those are inconsistent.

it is not sure you have to find unusual circumstances before a categorical exemption is proposed. further, the fact that there is no project applied for right now, for whatever reason, it could be a tactic by a development, it would be logical i think. we do not have to surmise that. the test is what is reasonably foreseeable. and that is the supreme court case. as i told you, laurel heights. if there is a number of cases that talk about that. another supreme court case, np -- no oil vs. the city of l.a. in page two of your response today, parcel a would be retained by the owners for

future development. that is reasonable. it is foreseeable. there is a reason for the subdivision. it is not happening for no reason. it would be odd to find it is not reasonably foreseeable. there is no reason to subdivide unless there is going to be a project that is coming forward. it is clearly not required that there be a project application. the other thing house want to say to year -- your staff told you that the reason the top rollcall exemption does not apply is that category of exemption implies that there is development spending. here there is not, so this exemption does not apply. that is not what the exemptions says. that exemption is for minor subdivisions where you have residential or commercial zoning in place, etc. it doesn't say and there is a product application. that exemption is just for a small subdivision. there is nothing in there about development pending. the whole point is that indexing

that happens after a project -- a lot is divided, the development potential increases. here it is questionable whether there would be environmental reviews required if you had two lots. it would change the kind of development which would occur. there are different setbacks and rules which occur when you have one lot versus when you have two lots. for example, in terms of setbacks and what you can do. the other argument that was made is that you do not know what is study because you do not have a crush a before you. so what you do with your environmental review? the city of antioch case that we talked about for a moment is particularly helpful. in that case, there was a specific argument made that there was no project applied for, so how the environmental review know what should be studied? the court goes on in great length saying, just look at the

type of development that would be allowed by that particular facilitated action. there was a sewer and road being opened here. you have two lots. you look at reasonable development on the property. what should happen is that the applicant will come forward with the project. the key problem here, again, is that by creating two lots, you lose control of the lot as the old. you have a landslide-prone and site, a lot of environmental concerns, and if you have the possibility of separate owners, you limit the availability of an army to review a. i refer you back, as the final thing to say, is that february of 1998, your staff explained and you have in your pot -- have it in your packet.

now i cannot find it. give me one more minute to find it and show you one last time, if you would. president chiu: thank you very much. any further questions? colleagues, any further questions. seeing none, this hearing has been held and clothes. this matter has been handed to the board. supervisor campos: president chiu. president chiu: i would like to make a motion that this project is exempt from environmental review. when i first learned about in the appeal regarding the tentative parcel map, i was a little bit skeptical until i started digging into this issue. we all know that telegraph hill is one of our city's most beautiful landmarks. we also know it is quite fragile pity -- quite for agile. there have been landslides that destroyed homes and restaurants. we should use the standard of

reasonable for civility here. we heard testimony today that these lots are unstable and if they are supported and we lose access from one lot to the other, that would not allow us to rebuild that stability. i also think it is curious that, in 1998, the planning department use the standard of the fact that this ilves slop e -- this hill's slope was greater than 20% was enough reason for environmental review. it did not cite development. that is clearly the case here in 2011. i would ask that, at this time, we reversed the planning department's decision. supervisor campos: in terms of items -- president chiu: items 32-38.

supervisor campos: it has been seconded by supervisor elsbernd. roll call. supervisor cohen: aye. supervisor elsbernd: aye. supervisor farrell: aye. supervisor kim: aye. supervisor mar: aye. supervisor mirkarimi: aye. supervisor wiener: aye. supervisor avalos: aye. supervisor campos: aye. president chiu: aye. supervisor chu: aye. clerk calvillo: there are a 11 ayes. president chiu: at this time, the exemption for review as and determined to be inadequate and has been returned to the planning department. it is still in the hands of the board for us to consider the tentative parcel map. it is tabled by operation. that is not what we discussed before.

so the map is denied. supervisor campos: there is no map. president chiu: at this time, the use matter has been tabled by operation of law. in the queue. -- thank you. what going to general public comment? clerk calvillo: the opportunity for the general public to address the board, including items on the adoption and items which have been excluded by a board committee. those using translation assistance will be allowed twice the amount of time. if you like a document to be displayed on the overhead projector, please clearly speak to such and remove the document when we return in the when we return to live coverage. >> first speaker.

>> [speaking foreign language] as at its senator abdollah.

i am here today. after 30 years, i have lived in the united states one of our supervisors, supervisor kim, and she cried. and that is the first time in my life, and this going, that i saw one supervisor have a sensitivity, life, and worry about each one of us. i hope she puts her hand with her friend and our supervisor. thurgau in one way or another to stop the criminal it is activity. a young baby, five years, has been shot at by a gun. another one, a 60-year old, has been killed by a gun. we