sailing races in the summer and fall of 2012 and 2013. and 37 affirms the certification. item 38 reverses the certification. item 39 directs the preparation of findings. president chiu: it is my understanding that both parties have agreed on a continuance to the 24th of this month, given that there is a second appeal of the eir for the project. at this time, i would like to entertain a motion to continue. the motion that these items will be continued to january 24, without objection. why don't we now call our special -- ok. i have just been reminded that we did not take public comment on whether we should continue this. could i have a motion to rescind that vote? without objection. this last item will be

rescinded. let me ask if there are any members of the public that wish to comment on the america's cup eir that we would have heard today, but are going to hear two weeks from now, if you wish to speak to the appeal or the motion to continue, please step up to the microphone. seeing none, a public comment is closed. again, a motion to continue by supervisor chu, seconded by supervisor farrell. now, let us call the items regarding sf moma, items 32 through 35. >> persons interested in the planning commission decision of the certification of the final environmental impact report for the proposed expansion of the san francisco museum of modern art, and relocation of fire station number one and housing project. item 33 of firms certification of the eir. item 34 reverses the

certification. item 35 directs preparation of findings. president chiu: before we proceed, we need to reduce supervisor ol-- recuse supervisor olague. the we take the motion without objection? that shall be the case. with that, why don't we now proceed into this appeal. we have an appeal of the final environmental impact report for the proposed sfmoma expansion and the fire station relocation and housing project. we will consider the accuracy, adequacy, and completeness of the final eir, of which you all have copies. when love for terror from the appellants, who will -- we will first hear from the appellants. we will then take public comment. each speaker will have up to two minutes. then the planning department will have up to 10 minutes to describe the grounds for the

certification. following that, we will hear from the real party of interest, who will have up to 10 minutes to present. finally, the appellants will have up to three minutes for a rebuttal. supervisor kim, as the supervisor in whose district this is located, opening comments? why don't we hear from the appellant? >> good afternoon. my name is christine griffith. i am, an attorney here in san francisco. i am representing kss enterprises, the owner of the w hotel in san francisco, the appellant in this case. we challenge the certification of the eir that was adopted by the planning commission to support the expansion of the museum of modern art. although my client support this project in general, they have concerns about the environmental review that was performed, and the process for the product approval.

that is the subject of our appeal. we have submitted letters and appeared at all the hearings on the project. you have all the information in front of you in your packets. we are asking today that you send the eir back to planning for revisions to fill in gaps in its original analysis. we have attempted to work with members from the moma to resolve some of the issues raised by this appeal, but we have not men successful so far in reaching an agreement. to the extent that the supervisors are not ready to send the eir back to planning, we would ask for more time to try to reach an agreement with the representatives of the moma on these issues so we can avoid a further dispute. our concerns relate primarily to three physical impact areas. the first is the visual or aesthetic impact. the eir is deficient, in that it does not fully analyze the

visual impact of the project. a clear example of this is that the eir's visual analysis does not consider the final product design. within days of the planning commission action on the eir, the moma released as the magic designs showing a building remarkably different from that considered -- released its schematic designs, showing a building remarkably different from the considered in the eir. you have seen it now and heard all the discussion. whether that design is high quality or not is not an issue for visual impact under ceqa. the issue here is that the actual design of the building that was proposed is quite different from the building that was analyzed in the eir, and thus the eir analysis is inadequate under the law. the final design is new information that was not made available to the planning

commission, nor was it available to the public before that decision. the visual analysis, taking into account the actual line of the building which has now been released, should be revised and recirculated for public comment before going back to the planning commission. moma will no doubt point to the section 309 design review process as efficient review, but that process has never been intended to, nor is it, an appropriate substitute for ceqa review. the second substantive issue is the traffic analysis. the eir does not adequately consider the traffic impacts associated with vacating and closure of the alleyway that runs through the middle of the block and that serves as the main access to the hotel loading dock and service areas. the impacts are not sufficiently mitigated by the voluntary

improvement measure that was added at the final eir stage in response to my client's comments. this is the primary access to the loading dock, including the garbage area and ballet area -- valet area. all of the hotel operations rely on this access. during construction, access will be completely cut off. and all the traffic associated with deliveries to the hotel -- basic foods and linens, uniforms -- all the traffic will be pushed onto third street and howard street. the valet services will not be able to drive through the porte- cochere that is there now. the that is not considered in the traffic impact analysis. in the long term, the access to hunt lane is also not

guaranteed, so it is possible the long term situation will also be pushing valet operations, deliveries, and garbage out on to these already congested streets. the vacation of hunt line further highlights the inadequacy of the traffic analysis. the findings claim that hunt lane is not necessary and not in use, but the eir response to comments made clear if it is -- that it is, as well as the late improvement measure to have the moma voluntarily of whom -- provide some access to the w in the future. the access to the net,-- to natoma pass is not considered at all, and does not been considered the subject of action, as it is required to be. the third substantive area is the construction impact

analysis. they are dismissed in the eir summarily, simply by the statement that these types of impact, because of their temporary nature, are generally considered less significant. while that may be true, that construction impacts are generally considered less than significant, that does not mean they are less than significant in every case, and certainly not in this case. you're talking about a two-year construction. even by the busy standards of san francisco downtown, that is a lazy and significant construction. the eir does not consider any of the impact of the construction other than the air quality impact. everything else is dismissed. we believe the eir must be recirculated so that the full impact of construction would be considered. again, i would ask that you send the eir back to planning for

revision to comply with the law. if not, i would ask that you forgo a decision today to allow the parties more time to reach an agreement. i am available for questions. president chiu: any questions? supervisor weiner: putting aside the merits in the requests for continuance, this came to the land use committee in november, if i am not mistaken. >> it may have an early december. supervisor weiner: so some time ago. i know at the time there were disputes and the parties were going to have discussions to try to resolve it. so i am a little skeptical of a request for additional time for discussions, given that there has already been quite a good opportunity to do that. i just wanted to put that out there and see what you have to say about that. >> as you know, there are a

number of complex issues and a lot of logistics involved in terms of how to accommodate the hotel operations. the parties have met to talk about some of the specific logistical issues, and have exchanged correspondence in an attempt to reach agreement on some of the other issues. but the reality is these things do take some time. we are working on it. supervisor cohen: so how much time do you think you need it? -- need? >> i would ask for a month. supervisor cohen: ok. thank you. supervisor campos: thank you. again, to the chair, i am still not convinced. what is it that would happen between now and a month from now that could not have happened in the last month? >> to be fair, i think we were hampered somewhat by the

intervening holidays, which did take a lot of people out of commission, so to speak, so that the correspondence back-and- forth was not as speedy as was hoped. we had difficulty putting together a face-to-face meeting, which is what i think is actually necessary. supervisor campos: thank you. i am still not clear on what the difference would be. thank you. president chiu: further questions, colleagues? at this time, thank you very much. why don't we hear from members of the public if they wish to support the appellant? please step up. each member of the public has up to two minutes to speak. >> ♪ 8 no fires shine if moma is gone only darkness every day no fires shine without moma find that moma home.

no sunshine when it's gone only darkness every day i know, i know, i know, i know i know, i know, i know, i note no sunshine without moma ♪ president chiu: other members of the public, line up in the center aisle if you wish to speak on behalf of the appellant. >> this is regarding fire station. i am representing the company at 944 folsom st.. this will help improve the vicinity and will bring hard working groups of firefighters to our community. we are a green building, and use

natural air ventilation in our building. we have the administration's tough, marketing, and customer service department constantly using phones with open windows. signs and that our windows would be a hardship for our business. noise is a hardship. we want to know what a negation for the sirens when the fire engines are coming out of the building. thank you for the support. we support the relocation and would like to let everybody know that we are looking forward to the quality community relationships. thank you. president chiu: thank you. are there any other members of the public that wish to speak on behalf of the appellants? seeing none at this time, why don't we go to a presentation from planning.

>> good afternoon, supervisors. planning department's staff. several jones from the environmental planning division and kevin died-- guuy join me to answer any questions to the rezoning items that will be heard as separate items following the eir appeal. the issue to date is planning commission certification of the final environmental impact report for the museum expansion , firehouse relocation, and housing project. the objections raised to the board are related to the eir's project description, the evaluation of visual impact, and concerns related to site access and circulation. as our repeal response states, these issues have been addressed sufficiently in the final eir.

the staff has indicated the response is adequate. the appellant has not presented substantial elements to the contrary. the appellate clem's this is not accurate because the final expansion design may differ from these dramatic design analyzed in the eir. proposed height, masson, square footage, location, and open space access matched those described and analyzed in the eir. the level of the project description the tilt is typical of eir's prepared in san francisco. the staff considers its sufficient to understand the physical attributes of the proposed museum expansion. the appellate claims that the expense would -- the effect of the east-facing windows of the

hotel would be considerable. the question is whether this would adversely affect cnet resources. the eir analyzes the affect on views from a public vantage points, such as your balbuena -- yerba buena gardens. it would not significantly alter public views. the eir discloses the potential for the project to be visible from nearby buildings such as the w hotel. the eir did not find this significant. the client claims that we did not analyze transportation events, such as access to the porte-cochere. the eir describes existing circulation to the mid-block

area, and illustrates in graphics and text how to access would occur from natomas street under project conditions. specifically, the project details but 14.5 ft. tall vehicular access tunnel and a driveway on howard street, similar to existing conditions. during the roughly two year construction, access to the mid- block area would be temporarily eliminated. the eir outlines two options addressing the loading and delivery operations from either a temporary third street center or a temporary ruling on howard street. either option would fees a bleak allow access, but would not result in significant environmental impact. to the concern related to fire station operations at 935 folsom

st., the product description has as part of the operation of that station signal pre-emption at sixth and folsom. it has been indicated by the fire department that the policy will be not to use fire signals when exiting are coming back to the fire station, because signal pre-emption would allow signals to clear the traffic along folsom st., and the use of sirens would not be necessary under those conditions. the planning department's position is that the eir sufficiently analyzes the pertinent secret issue. after carefully considering the draft eir written comments and testimony, we have not heard anything that alters our conclusions with respect to the eir findings.

staff respectfully recommends the board uphold the eir as adequate and complete. this concludes my presentation. staff is available for questions. thank you. president chiu: any questions to planning? ok. seeing none at this time, why don't we hear from the party of interest? you have up to 10 minutes for your presentation. >> good afternoon, supervisors. i am here on behalf of the real party, the san francisco museum of modern art. i am pleased to participate in this important hearing to further efforts to more than doubled gallery space, enhance public in the ministry to functions, and provide a home for the collection of contemporary art. in 2010, the board unanimously approved a land transfer for this project, and fire station relocation, contingent on the action

today. the planning commission certified eir november 30, and the commission is scheduled to do it and a consideration of the museum design on february 2, more than three weeks from now, plenty of time for us to continue to have consideration of this appeal. i will speak to it, and then the director of the museum will add a few words. there is no merit to this appeal. the eir is adequate, complete, and attractive. it was prepared in compliance with the requirements of ceqa. it analyzes each of the issues raised. between the initial study, draft eir, and comments and responses document, the eir comprises over 800 pages of detailed analysis for this relatively modest project. the eir determined there were some aspects which could not be mitigated with construction of

the new fire station, but there are none with the museum expansion itself. we urge you to reject the appeal. the first claim is that the eir project description is inadequate and unstable because the final step method designed for the expansion product -- which give final schematic -- because the final shcematic designed for the expansion is not included in the plan. the final design demonstrates the height, masson, square footage, and materials -- massing, square footage, and materials described in the eir. it is the same distance from the windows in the hotel and does not encroach on hotel property.

it affects views from the same number of hotel rooms. the materials are exactly as described. accordingly, the claim that the eir project description is uncertain are inaccurate is simply wrong as to access, currently the hotel -- is simply wrong. as to access, currently the hotel uses a public easement over a portion of moma property. the second claim in this appeal is that the eir did not analyze the land use and transportation in parts that might occur, should this access route be unilaterally terminated. however, the eir did not need to analyze the specter of possibility, because it cannot and will not happen for several reasons. first, the plans for the expansion have always included a 14.5 ft. tall vehicular

passage between the street and the porte-cochere to retain its access road. second, the land acquisition agreement between the city and moma that you approved in 2010 required we provide an easement to the hotel over this area. thus, it will not occur unless and until an easement is put in place. third, the museum has offered to pay the revocable access easement. i provided a draft of the agreement to be a turning. fourth, the eir contains an apartment measure to make sure the area is managed properly to provide access to the porte- cochere and loading docks, 24 hours a day, seven days a week. the eir adequately support -- describes access in a manner

similar to current operations. because there will be minimal change to current operations, the eir concluded there will be no significant transportation impact with modification of the new block area. we believe our written order to record and a revocable easement removes any possibility -- an irrevocable easement removes any possibility. the next claim is that the eir did not adequately analyze construction in parks, particularly the temporary relocation of hotel access and valet parking. that is untrue. both the draft eir and the comments and responses describe relocation during construction. because the number of trucks and valet parking vehicles associated with the hotel is so small compared to background

volume, the eir concluded the impact was not significant. after the eir was published, the museum and hotel staff continued to meet. they have agreed on a construction scheme. by december 22 letter provides a detailed description of that to reconstruction. this plan was presented to staff on december 21, and mta staff think the plan is feasible and can be implemented. the plan is also described in the eir in pages 57 through 59. according to the appeal, the temporary relocation of the loading and parking routes are uncertain and inadequately analyzed. i would note the eir also uncovered other elements of the construction, including noise, air quality, and other traffic. views -- the next plan is that

the eir underestimates affects on views from guest rooms in the hotel. they claim the impact from the 200-foot tall building will significantly impact the 320- foot tall hotel, and therefore must be mitigated by a redesign of the expansion project. they said the is that the impact will be significant unless the expansion project be reduced from 10 stories in height to two stories. the impact on views from private guest rooms are not considered to have an impact. the eir and college there would be few in practice on hotel rooms from private hotels, but those are not significant. the events in the theory that views from private hotel rooms are really public views, because any member of the public can rent a room. we submit that those views

remain private, no matter who rents a room. guests are only there for a few nights at a time. even if the view is impeded, the index is temporary. the boot should reject this and uphold a longstanding policy that considers public views part of the environment, but not private views. this is no more than a tactic in the ongoing campaign to attract cash from sfmoma, despite settled law and years of ceqa analysis in san francisco. they believe views from the hotel are deserving of special protection and private compensation. for months, they have been demanding the museum paid millions of dollars for building a 200 ft tall museum next to the 325 naoto, even though the current high limit is 320 feet. we submit this is nothing more than another step in ongoing efforts to bully the museum into

paying a ransom. i include as an attachment in my brief a copy of the letter from peter wong to the chair of the board on october 12, 2011. in that letter, mr. wong clams expansion project will reduce the value of the hotel and $24 million, proposes that the museum compensate for the alleged impact, and threatens litigation to delay the project unless demands are not satisfied. it would be hard to find a more explosive or direct demand. nowhere is there concern about the adequacy of the e.r.. the eir is adequate and complete, and there is no substance to this appeal. the museum has submitted a systematic -- schematic design that has a 14.5 ft. passageway for the hotel