delays in any discussion. i hope it will be discussed at next week's or this week's government audit and oversight committee hearing. i would like to issue a warning that i expect that committee to do its job like it has been done in the past. i for one am not going to tolerate any committee like it has been handled in the past. the previous speakers intimated that there was some sort of problem with the residency of the supervisors. i would like to say, for the public, there is one supervisor that needs to clarify his residency. it is a simple yes or no answer. that supervisor needs to come clean, yes or no.

, on. you did it for daly. let us do it for this person. president chiu: are there any other members of the public who wish to speak in general public comment? >> good afternoon, president chiu, members of the board of supervisors. my name is jackie bryson. that is jakkie bryson. there needs to be a hearing, because yet another person died in the building, the person who

lived next door to me. the body was discovered around 6:30 yesterday. i heard talking in the hallway. two white males, very focused voices. i am thinking, "can't live here." i am hearing and first men, glassman, and middle name of the gentleman. -- first name, last name, middle name of the gentleman. he does live here. then i heard past tense and the radio crackled from a police radio. what has he done? he is off to jail. i went out this morning because there was no commotion in the hallway, to get my mail. there was a medical examiner seal on his door. that is just one of about four

deaths we have had in less than two years in that building. there needs to be an investigation into what in the world is going on there. there also is a plethora of evictions. call up the superior court website and take a look see. last but not least, there were two tenants who filed -- president chiu: thank you very much. next speaker. >> good afternoon, supervisors. my name is diarrhea and wesley smith. i am from bayview hunters point -- my name is dianne wesley smith. the redevelopment agency is gone. it did not do much -- to us much

good, unless you knew someone. we are expecting citizen participation. that has been lacking. we want to be involved and engaged. we do not want business as usual. we are willing to work with the existing one, but no more business as usual. we have future generations to look down four. no more business as usual. the usual suspects have not looked up for our community. i looked at the environmental impact study. it is atrocious. humans are part of the environment. the residents are not being looked out for. we need citizen participation. together we can. otherwise it will be chaos. a lot of the wrong people are going to be left out. as you reach out to the bayview community, make sure you are reaching out to all of us.

they need our help. thank you. president chiu: general public, it is closed. could we now go to our 4:00 p.m. special order, related to america's couple? >> items 21 through 32 comprise the special order at 4:00 p.m., for persons interested in the 2011 planning commission certification of the final environmental impact report for a proposed project involving the america's cup sailing races in the summer and fall of 2012 and 2013 at per se 27 through 29. item 30 approves certification of the environmental impact report. 31 reverses commission certification. 32 directs the court to compare it -- to prepare findings. president chiu: supervisor olague was involved in this

matter on the planning commission. can i have a motion to recuse her? can we do that without objection? the show be the case. we understand the supervisor will likely be coming back if we have to consider other items relating to america's cup. before us today, we have an appeal of the final environmental impact report from the america's cup project. for this hearing, we will consider the adequacy, accuracy, sufficiency, and completeness of the final impact report. for today's hearing, we will first hear from the appellants, who will have up to 15 minutes in total. we will be hearing the consolidated appeals of the groups of appellants. they shall divide this time as they see fit. we will take public comment from individual speaking on behalf of

the appellants. we will then hear from the planning department, who will have up to 50 minutes to describe the grounds for the certification of the e.r.. following planning, we will hear from the real party of interest. we will hear from individuals who wish to speak on behalf of the real party of interest. finally, for rebuttal, the appellants will have up to five minutes, to be divided as the appellants see fit during this consolidated appeal. any questions or objections to proceeding in this way? if not, let me ask if there are members of the board who wish to make any introductory comments. i know it is a crowded room. we need everyone to be seated. if there are members of the public who do not have a seat, we have an overflow room with large screen videos across the hall. my i ask representatives from

the appellant if you will please step up to the microphone. you have 15 minutes. >> thank you very much. i am with the appellants in both consolidated appeals. that would be the golden gate audubon society, waterfront watch, telegraph hill dwellers, and the sierra club. i am not going to use my full 15 minutes. the eir is large. the commentary i have submitted is quite voluminous. i am not planning to try to go through all the details of why we think the eir is defective under ceqa. the amount to highlight a couple of important issues. but also important to the city from the standpoint of legal vulnerability. the first i want to talk about is whether this eir is defined

in its own terms as a project eir or program eir. this is an area of the law that is so dense i am not going to try to go through all the legal aspects, but it is very important. when you have a long-term program that is going to have individual projects submitted pursuant to it at a later time, which we have here, ceqa provides a specific mechanism for doing an eir. the consequences of choosing a program eir for the long term development rights granted to the authority here is very different than not doing that. if you have a so-called project eir for the long term development rights, the authority gets to are you later, when they submit an application for one of these waterfront parcels, that the review is limited to whether a subsequent environmental impact report is prepared under 21166. that is a very favorable

standard. all they have to do is submit what is called substantial evidence of no more severe significant impact. that standard is very favorable to the authority. it is unfavorable to the city to be able to require a subsequent report, and very unfavorable for my clients to be able to challenge. conversely, a program eir for a long term program where you have individual projects have subsequent ceqa reviews under section 21151. under that section, the balance goes to deciding to do an eir. all doubts are resolved in favor of preparing and eir. you have a much higher likelihood if you call this a program eir for long-term development lights -- rights. it is a detailed environmental

review that is needed. if you have that much likely -- that much higher likelihood it to: eir -- that is why it is important to my clients and the city. this waffles on the issue. it is not a project eir for the long term development rights. it is not a program-level review. ceqa does not waffle on the issue. there are a number of different types of eir. you have to pick one. legally, it is very vulnerable for that reason. he should take that into consideration. there are a number of ways i think this board could address that today that would be helpful. to talk about this, i want to acknowledge that we have been trying to talk to the board commission and city officials to

settle the this agreements my clients have with the product description and with the eir. i would like to think the board would try to do something today that would bring settlement of that dispute without the need to go to litigation. the first thing this board could do would be to continue this hearing on top of your 14, when this division and development agreement is before the board. that would give the parties more time to try to resolve these disagreements. i m concerned that if you simply deny the appeal an order to comply with the ex abided time schedule this project has been on from the get go that you will foreclose the ability to define this eir appropriately in this way, and therefore make the settlement more difficult. if you simply denied the appeal, you lose jurisdiction over the eir at that point. a simple denial is going to make

it difficult for the city and my clients to come to agreement on this issue of what kind of eir this is. another thing the board could do would be to close the public hearing and continue the decision and the liberation until the 14th. that would essentially accomplish the same purpose. possible other alternatives would be to grant the appeal if the board were inclined, and send it back to the planning commission for a redefinition of the eir as program level for the development rights, including the marinas. that will take more time. there has been great momentum and great energy put into keeping this on a tight timeframe. that would change that, obviously. the fourth alternative is if the board is inclined to deny the appeal. it would be to a company that the nile with the resolution, making findings that it is a program eir with respect to the

long term development rights and the subsequent or future environmental review undersea "would be under section 21151, which provides the benefit of the doubt to preparing an environmental impact report, rather than something like an addendum. those would be four different ways i would encourage the board to consider going, to keep the possibility of settlement more favorable and more likely than not. another big area of the eir i would like to talk about is air quality. a number of the project air quality impacts have been determined to be significantly adverse and unavoidable. under ceqa, you cannot get to the unavoidable finding that you are going to be faced with on february 14. there are measures that would

substantially reduce that impact that would be determined to be unfeasible. hear, the air quality management district has found that if you impose a fee mitigation plan on the project, the authority has to pay for the increment of air pollutants above the threshold of significance. those moneys go into a program -- into a fund that is used to buy upper old, inefficient polluting diesel engines used on the day, and to replace them with clean diesel engines. then you can significantly reduce the equality impact this project will have. the planning department has rejected that mitigation measure on two grounds. there is no funding plan, and a funding mechanism in place. that is simply wrong as a matter of law. the agency cannot simply sit on its hands and say there is no

plan on place. there is a duty to work with the agencies that do those plans to make them happen. one of the places that discusses how that is the city of henderson. in another case, the california supreme court found that the lead agency, the university, had an obligation to go to the state legislature to try to find funding for a mitigation measures before determining it was invisible. it is not simply a passive role. the agency does not have a passive role unless there is a safe haven mitigation plan at the moment of eir certification. it does not work that way.

the air quality management district submitted a letter to the city on december 15, explaining how that fund could be set up, if it was feasible to do so. but legal reason for rejecting the mitigation does apply. the other thing the city said is we do not have a way to make sure the amount of the fee bears some nexus to the amount of harm caused by the project in terms of air pollution, and that the amount of the fee is proportional. those are constitutional requirements of mitigation measures in a ceqa context. what the air quality management district said is that is the easy part. you just look at the quantity of air pollutants that are going to be limited above the threshold of significance. that is what has to be mitigated. you can calculate how many engines you have to replace with clean diesel engines. how much to those cost?

-- do those cost? you work backwards to get your mitigation fee. i think the city has a real vulnerability in terms of legality and the upcoming ceqa findings in february in rejecting that mitigation measures. one of the other issues that came up with air pollution is that there is a huge decrease in the predicted number of spectators between the draft e.r. and the final eir -- draft eir and the final eir. the project will cause a loss of shoreside power at pier 37. cruise ships that berthed there will use their engines for power instead of using the facility on the pier. the draft eir said there would be seven ships -- 17 ships, and the final version increased to

40. the was already a significant amount of affected terms of air quality. now it is more than 100% higher of a severe impact. when you have a more severe, significant impact a after you close public comment, you have to recirculate. it is a classic requirement, he is closing to the public this impact is now more severe -- twice as severe than it was. the answer the planning department gave is that the increase is going to be offset by two things. one, we have fewer spectators. if you are talking about a different methodology for talking with inspectors, or different assumptions that came up after the draft eir, which is what happened here, and use that as a justification for talking about environmental impact not being as severe as otherwise,

that triggers recirculation all by itself. the rationale for not recirculating is a rationale that would require a circulation. the other rationale the planning department gave was that there would be a decrease in air pollutant emissions by installing shoreside power at pier 70, which is another mitigation measures added to the eir. on the next page of the memorandum that discusses this of budget offset, it commits -- it admits it may not be feasible to implement because there is not funding. we can talk about whether that part of the memo is legal or not. but stick with the logical point. they are telling you the increase in severity of the first impact from the loss of power at pier 27 will be offset by the installation of power at pier 70.

they do not tell you that is not sure to happen, because it is not clear it is feasible. if it is not sure it is happening, you cannot do the math and offset it. it is a serious problem with the logic and the environmental analysis. i am not going to go through all the details of the very lengthy letters i have submitted on this eir, but there are some things that are explanatory of why the eir has so many problems. when the host agreement was signed, there was a very short timeframe available to do this environmental review. that was because of the timing of the races, 2012-2013. that was a problem even if you were just looking at the races. then you have this grab bag of disparate elements that are thrown together in an alleged project. you have races.

you have a cruise terminal. you have long term development rights granted to the authority. none of those intrinsically have anything to do with each other. it is part of a financial package to try to make everything work. that is fine, except to try to cram something that does not go together into a time frame that is not adequate. the result is clear throughout the draft eir and final eir. remember, ceqa requires a good faith response to comments with empirical information and expert opinion, things that are real. what you see is a continual restatement of what the draft eir says, which is not responsive under the law. i believe that sound was my 15 minutes, in which case, i will conclude. i will conclude by asking the board tried to do something here that keeps the prospects for settlement of this dispute more likely than not. thank you.

president chiu: i will start off with two questions. the first issue was whether this was a project level of analysis. i know the planning department has responded by stating that in the final eir there is an understanding that future plans are required to undergo separate environmental review. could you respond to that? as i read the document, there seems to be a lot of clarity. i wonder if you could clarify that. >> that is accurate, in terms of separate environmental review. that phrase is used. but it can take many forms. to say separate environmental review does not answer the real question. is that going to be an environmental impact report? a separate environmental review is an addendum, or could be. the purpose is to tell you what the subsequent environmental impact report is not going to be done. that document, the addendum,

would be reviewed if deemed to be project-level under ceqa, a project level eir. that would be reviewed under a standard by which courts are looking for some evidence that is believable that supports a decision not to do an eir. that is not really environmental review, because the addendum would look at the question of whether there are severe, a significant impact, new mitigation measures that have not been adopted. those are criteria before getting to the subsequent eir, if you are locked into this area of ceqa we called section 21166. if you are not locked into that area but are under section 21151, where any project that comes under the door, without history, comes in -- then, an initial study is done, not just environmental review.

it looks at whether the project is likely to have some -- significant impact on the environment. a very low standard. it is possible it might have significant effect on the environment. if the determination is that it is not going to have significant effects, a so-called negative declaration is done. all of those documents are considered "environmental review" under ceqa. where are you going to end up? we think this eir is ambiguous and gives a lot of leeway to the city planning department to avoid eir's while still conducting "environmental review." the phrase does not do a lot to solve the problem. president chiu: another has been a lot of discussion in our community around the proposed jumbo trone. -- jumbotron.

there are concerns about whether it would disturb toxic sediments, or cause other safety hazards. the planning department has taken the position that they have fully analyzed these issues and determined the impact will not be significant. >> this eir is project-level for the races and everything associated with the races and the cruise terminal. the jumbotron -- we are done with environmental review. the only way to change what the planning department said about it is for somebody to file a lawsuit and a judge to agree that issue was not analyzed properly, and have to go back to the planning department. from the standpoint of what we were talking about, that is the final word, absent a lawsuit, following a protest-level eir in this document. it is clear that that issue has

not been studied enough. it is one of many issues that did not get enough attention. that are going to drop these concrete piers and tell you that is not going to stir up sediment. they will not tell you how long it will take the sediment to resettle. there are a host of issues, in terms of modeling the hydraulic effect of doing that, which of not been looked at. that is a real problem. " park, like a lot of the bay, is laden with all sorts of toxic chemicals and heavy metals. people should not be swimming there once it is done. that is a serious problem. supervisor campos: thank you for the presentation.

the issue before us is whether or not there has been not legally required environmental review. -- that legally required environmental review. that is separate from whether the underlying agreement makes sense for the city. let me say at the outset that i am a strong supporter of the america's cup. like many of my colleagues on this board, who voted to bring this event to san francisco, we want this event to succeed. we want it done in a way that is environmentally responsible and financially responsible. the issue of environmental review is what is before us. one of the interesting points that i think was made in the appeal is about the interconnection between the environmental review and some of the financial terms of this deal. i think the letters that came

from san francisco tomorrow, signed by president cleary, dated january 22, makes a very interesting point. there is so much uncertainty in terms of where the funding for the environmental negations is going to come from that that uncertainty raises questions about whether or not the city will actually be able to perform the environmental negations -- mitigation. i think that is one point where the financial component of what is before us and may come before us impact the environmental review. i am wondering if you could expand on that, how this financial uncertainty, if you