attorney lipe gaffney wagoner dated february 14th, which will supplement the original letter and exhibits that were submitted on february 5th, 2013, by lgw attorneys. we had submitted one original letter. i'm going to submit seven copies of that february 5th letter and eight copies of the -- our new february 14th letter. we stand by our original contentions that the pagoda theater extraction site does require a subsequent or supplemental e-i-r. in particular, i'd like to read item 2 of today's letter. approval of the special use district violates the conformity requirement of state law. the proposal to adopt the so-called special use district, the one parcel of land is for

the express purpose which is to grant the owner an exemption from numerous zoning rules is in essence a variance. as such, the city must comply with the procedures and make the substantive findings required by state and city law for approving a variance, which this proposal fails to do. the pagoda theater site is obviously much better than the columbus avenue extraction. we have worked and supported. our neighborhood merchants and neighbors not disrupting the business community for over a year or two. we also have a strong feeling that the pagoda site's $9 million expenditure to extract

tbms which have salvage value at most 4.4 to $6 million is illogical. by not even extracting the machines at the pagoda, by varying the machines as has been done in new york city, in brisbane, australia, in the tunnel in the english channel, where machines are either lowered below tunnels or shifted to the side or [speaker not understood], that machines can be buried. machines can be extracted technically at any point in a project. the chinatown retrieval of the tbms was the base project in the approved e-i-r. it is technically feasible. it saves two extending tunnels that are about 4,000 total feet, saving about $70 million. why not save $80 million and put it into muni? thank you.

president fong, commissioners, my name is aaron peskin. i had the pleasure of voting for the environmental impact report in this matter a number of years ago. i think the previous speaker spoke to some of the alternatives. i think the current modified proposal has not been well thought out as a matter of policy, as a matter of fiscal policy, and has not been adequately analyzed. but i am not here to speak about that or my beliefs that section 106 of the nhpa have not been complied with, [speaker not understood] has not been adequately complied with. i'm here to speak about item 7c on your calendar which is really the substantive thing before you today for the board of supervisors would have to act on the text amendments in the first two matters. it is my contention -- i'm

sorry that deputy city attorney ms. stacey is not here for perhaps she can render an opinion for you -- that the conditional use is not legally before you today. i do not believe that you can consider the conditional use until after the sud has been adopted by the board of supervisors. i don't believe that you can consider a conditional use for various uses that right now are not permitted under the code. section 121.2 provides in the north beach ncd, nonresidential use sizes of 4,000 feet and above are not permitted. i don't think you can consider a 4700 square foot thing until the law has been changed. section 7 80.3 is implicated, as is section 22 1.1. the bottom line here is that i believe as a matter of law,

commissioners, respectfully you have the cart before the horse and you cannot adopt this matter until the law has changed in such a way that you can issue the conditional use. * thank you for considering my comments. tough act to follow. commissioners, my name is richard hammond, long-time resident of north beach. and a couple of decades ago in my capacity as a concrete contractor and a foundation contractor, i dug a tunnel under bake man broadway for parking garage. you can see it when the garage doors open. i did another one down the street, another long tunnel, 30, 40 feet. i did one on larkin street. there is nothing exotic about the -- in construction terms about what's being considered here. there's nothing unique and nothing dangerous and nothing

exotic, nothing that hasn't been proven and done. >> thank you. i'll call a couple more names. joan wood. nan wroth, and lance curtis. good afternoon, commissioners. i'm going to take just the narrow aspect of this. the director reiskin and the project manager funge and david chiu particularly have all resisted explaining why the chinatown -- >> excuse me, ma'am. could you state your name for the record? i'm so sorry, joan wood. and i've been since 1962 continuously a resident of north beach. and my particular objection is that the extraction, the boring machines in chinatown has not been explored.

questions that we've been firing off for a couple of weeks to director reiskin and project manager funge and particularly david chiu who was thought to be our savior for a while of the north beach merchants, but he's gone over to the dark side, is one way i might put it. i've been going to meetings in mr. funge's jurisdiction four or five years. in the beginning they were going to back up the boring machines. for months every time i went to a meeting he talked about backing them up all the way from chinatown to fourth and king street. and then that plan never was heard from again. the city was going to rent them at that time. then it became that the city was going to buy them. we didn't hear any more about the extractions and we assumed they were still going to be backed up. north beach really wasn't surprised the fact there was going to be an intrusion upon us. we did know if we red the e-i-r

there were going to be 7 extra blocks of digging of the tunnels from the last station in chinatown. and it was kind of late in the game when we learned about it and we did object to that, but nobody paid any attention. so, suddenly drilling started. they were moving the utility lines right at washington square park. and that aroused the ire of north beach. and david chiu stepped in and he was going to help us and there is a lawsuit by mark brewin owe about it, but somehow the extraction of the machines that's been moved all right. it's been moved across the street. * and somehow an e-i-r, supplemental e-i-r was almost immediately issued building on the previous awards permits that were given to [speaker not understood] campus who had abandoned his project. we are told now he couldn't afford it then he could afford it, and then his lawyer said months ago -- now, this happened in november. i kid you not. months ago, however, the city approached him about holding

off on building something a little suspect there. we want to know why these machines cannot be extracted in chinatown. it would save $70 million. the only explanation mr. funge has ever given is it would disturb the community and it is deeper in chinatown than it is in north beach. i don't accept those as valid explanations for why these can't be removed in chinatown. thank you. hello, my name is nan wroth. i've been a 50 year resident of telegraph hill in north beach. and also i worked as a city planner in my working days. i'm now retired. i had some experience with environmental review. i first of all, because i might get cut off short here, i want you to understand i support not extending the tunneling to north beach and not extracting

the tdms at the pagoda site. i also urge you to consider the potential extension to fisherman's -- to not consider the potential extension to fisherman's wharf until adequate engineering studies have been done to establish the feasibility and potential impacts of that. now going on. i would like to know to what extent the conditions attached to the original planning commission approval for the pagoda project have been modified in regard to the project being presented today. i notice some significant differences in the legislation going to the board of supervisors. for instance, it was my understanding that the project as originally permitted was not to exceed the envelope of the original theater structure. the legislation being proposed at this time simply says that now new construction is not to exceed 50 feet. without mention of the original building envelope. the original planning commission approval came as a result of hearings and consensus building on the part

of the planning department and the commission. now all there has been, very restrictive community input, heavily altered by the mta. for example, misrepresenting community support of the pagoda alternative. at both of the community meetings, the majority of people in attendance opposed it and negotiate behind closed doors, back room politics to say the least, what other changes are being contemplated or negotiated that we, the public, may not be aware of? furthermore, many questions have been raised in regard to the risk to adjacent properties. not even mentioned in the e-i-r is the most at-risk structure on the northwest corner of columbus and filbert. the narrow e-i-r does not mention that building or the playground across the street at st. peter and paul school. the building was tagged after the 1989 earthquake and never repaired. the shifting of the building is quite evident from the street

and many of the double hung windows no longer function. an e-i-r process that ignores this issue is an inadequate e-i-r process. it struck me as a cut and paste project. i also understand the tunneling will go underneath the bank of america building at stockton and green, again, omitted from the e-i-r addendum. this is not a modest development project. it has significant potential impacts on the community. it deserves a more thorough environmental review. up to now it was treated as an afterthought, not likely to occur. that is no longer the case. thank you. >> lance carnis. good afternoon, my name is lance carnes. i'm a north beach resident. i'd like to hit two points. one is the underground water flow problem at the pagoda

site. and to this presentation by mr. reiskin and mr. funge, they did note that they could drill this -- dig this hole, pump out the water and everything would be just fine. however, behind their presentation was -- these are actually fairly serious problems and their timelines to solve them in one month before construction begins. this problem scuttled a previous project at the same site in the early 2000s and i think if it's not adequately planned for and taken care of, this will be a serious problem. the project may not be successful. there may be a hole there for longer than they anticipated. there were some problems with overflow of the water into

adjacent properties and businesses. the second area, disturbance to the neighborhood is a restaurant right in the shadow of the pagoda theater called piaza pelagrina. with construction and noise likely to be there, it would probably ruin this business. there are three other businesses nearby that the site, bottle cap restaurant, sushi hunter restaurant, and an office building will also be adversely affected. in addition, the yacht races are coming up and this is a very popular area to come and celebrate, spend some money. i think with construction going on there, with cranes and whatever going on dust, people would probably not go in the heart of that area to dine during the yacht races.

third is i'd like to encourage the mta and i'd like to encourage you to deny this project, but encourage mta to bury the tunnel boring machines in chinatown. i was a little stunned today. once again here, mr. reiskin said burying the tbms in chinatown would further [speaker not understood] the project. i don't know. dos of other projects around the world, the tunnel boring machines were pulled out to the side. future progress wanted to happen it could certainly occur. * so, yeah, i'd really think that burying in chinatown is the logical solution. in the future if funds are available and plans to extend further north ward, i think that would be the time to consider a north beach station and beyond. thank you. >> is there any other comments, public comment on this item?

you can leave it there and step up. commissioners, my name is mark bruno. it was mentioned earlier that i'm involved in a lawsuit. what was not mentioned is that lawsuit against the city is funded by and includes many businesses in north beach, many of the businesses that you probably have gone to, restaurants and retailers in north beach. and my only question for the commission with regards to this special use district is this one. we know, because we begged supervisor chiu and director ed reiskin and others, to move the extraction site from columbus and union over to the pagoda palace. and they've done their best to do that. it's quite an accomplishment. but i think from a policy issue, whether it's about this project or any other, why should the city take a risk with something that already works, something that's already

successful, something that hires hundreds of people, businesses in north beach? we have been told in passing, because we had at least six meetings with mr. funge and sometimes with ed reiskin and often with mr. chiu, that the golden gate bridge couldn't have been built if those who objected to it said no. but if you look at that history of the golden gate bridge, there was nothing there. there was nothing to destroy. there was no risk to take with employees and businesses and residents. so, why should the city as a matter of policy risk those things we have when we know that there's a reasonable option already approved by this board to leave the tbms in the ground, to not destroy those businesses, to not disturb the residents, to not make it impossible to use the playground on the park, to not take any risk whatsoever, and allow and encourage the subway which is a good thing to be built? in other words, there's two

good things here, the subway which i'm in favor of, and the businesses in north beach, which all of us are still in favor of and the peace and quiet of the residents which they expect when they come home to find a clean apartment, clean house, to find quiet in the afternoon if they work at home and many people in north beach do. all these things are good things and they can exist. they can coexist in the city. and as the city becomes more urbanized, there is no reason that we even have to have these discussions had we had as a group, as a city, the foresight from the beginning to never ask the question. can we extract this equipment from the middle of a busy neighborhood? it should never have been questioned. it never should have been approved. it never should have been considered if there was an engineering and a financial way to do it otherwise. there still are those ways today. and i beg you to consider whatever is necessary to do that so as not to disturb north beach and destroy the businesses there. thank you very much.

president fong, commissioners, my name is julie christin son. i'm a north beach resident. i'm here to ask you to approve the matters before you with regards to the pagoda palace and the tunnel boring machines. i've planted a lot of street trees. one of my favorite adages is this that task is when is the best time to plant a tree? 40 years ago. when is the second best time? today. i think we'd all agree that applies to subways as well perhaps. there's a lot of things people want to talk about here today. i think we're a little past the point of discussing the pros and cons of the central subway as that's well underway. what i'd like to discuss in front of you is a north beach stations and transit service to the north beach sector including fisherman's wharf. guess we're not ready to have that discussion. i hope you find the actual matters ahead -- in front of you simpler to deal with. and i think there are seven

good reasons to approve the items in item 7. one is they narrowly preserve the accommodations to which the property owner is already entitled. we're not changing the future. we're just letting it roll ahead with a little disruption in between. secondly, it takes the intense disruption of the extraction that is currently planned for columbus and union and moves it completely off-site to an off-street location where that extraction can happen without the disruption that would be caused by the columbus and union project. thirdly, and this is something i would expect most of you to respond to, it remove from the heart of our neighborhood a rusting hull being of a building that has been a symbol of our neighborhood's inability to get its architectural and commercial act tonighttion. it's time for that building to go. and whatever would fake it away and allow the future to roll on, i'm in support of. * this item also keeps two of the

best things about the columbus and union extraction. it allows the salvage value of the tunnel boring heads to offset the cost of extraction, and important to those of us who support a station in north beach, that is the majority of my neighbors in my opinion, it preserve the section of tunnel that's currently planned in phase ii that runs from chinatown to north beach. it's already paid for. it's a done deal. and it allows that section of tunnel to be built. and we hope to facilitate the eventual construction of a north beach station. this item allows you to support the efforts of our supervisor who has tried very hard to be responsive to the concerns of his constituents. and i hope that this item will help jump start the discussion of an eventual north beach and potentially fisherman's wharf station. i think the central subway doesn't make sense without those and i think our neighborhood needs them to continue to grow and survive in the future. so, give us a hand, if you would. let this roll forward. and i hope we're talking about

a north beach station before too much longer. thank you, commissioners. >> is there any additional or further public comment? okay, seeing none, public comment is closed. commissioners? commissioner antonini. >> yeah. a question for mr. funge or mr. reiskin, whoever would comment on the boring machines themselves. i just wanted to ask, a question has been raised by some of the public about leaving them in the ground and whether that's a viable option. i'm not in favor of that obviously, but i just wanted to get an answer about whether they're serviceable at some future time and what happens to the machines could be used again if they were taken out, could they be put back down in the ground. if someone could answer that question. >> commissioner antonini, so, the machines themselves have a

short self-life. so, if we left them in the ground, it's not like parking a car and coming back in and starting it up and continuing to fisherman's wharf. so, basically when they're left in the ground, they will eventually degrade and become a very heavy expensive tin can. in terms of burying the machine, yes, that is a feasible all teshvthv at ternative that was present today our board. * there are down sides. there are issues, future issues essentially with burying the machine wherever they're buried. if you ever want to extend the line through that area, they would eventually have to be removed and removing something of that size in the ground would probably be quite a bit more destructive than it would be removing them today. * alternative >> and my follow-up question is when they're removed, are they usable in the future? >> oh, yes, yes. so, essentially the way we

structured our tunnel contract, the machines are actually designed and purchased by our tunnel contractor. they're essentially his property, his tool or his equipment. and he anticipates retrieving -- within the contract, he anticipated retrieving the machines, using the machines for his future projects or reselling them on the open market. >> so, there is a salvage value -- >> owe yes. these machines -- the machines that will be used to build the central subway are essentially new machines. * oh, these machines have a fairly, very -- they can be reused and refurbished and they're used throughout the world in other projects that would use that same diameter. >> great. the one final question while i have you here, the north beach station option is clearly not before us today. but my understanding is nothing we're doing here would preclude

that possibility. in other words, it actually would make it possible to have a north beach station by continuing the tunnel to north beach and providing a site where possibly a future station pending environmental review could be built? >> that's correct. we're not doing anything that would preclude a north beach station or make it more difficult to construct in the future. >> thank you very much. i appreciate it. well, a few comments along those lines. i'm just going to make -- sir, thanks for your comments. i think it was brought up quite well by staff that some of the studies that were brought by another expert on the problems about the retrieval shaft dealt with information that was not accurate as to the depth of the hole that was going to be and the type of dirt there. and as far as the issue

regarding de watering, it's something we deal with all the time. i mean, we're dealing with that same issue probably right now at transbay. there is a low water table there and we have to be very careful about making sure that it's dewatered and that it's shored in such a way that any future intrusion of water is not going to permeate the area where the train box is being built for the central -- the caltrain extension. * and, so, this is basic, you know, engineering that's been done for decades and possibly centuries in some instances. and, you know, this is not even more difficult where the case signs built for the golden gate bridge where you had to make a barrier for water to build the towers and keep water out of there, very strong current and be able to construct these towers. and that was much more difficult engineering problem than any of this is. so, i don't see that as an issue. i think the environmental

analysis that's supplemental is clearly adequate. we're doing about a hundred feet difference from where it was analyzed and a site that actually has less impact. somebody brought up the playground at st. peter and paul school which is actually closer to the excavation site or the removal site on columbus than it is at the removal site at pagoda, so the impact would be even less on the school yard and the building that was under concern than with that site. and that's another thing that i think was misrepresented, i've been sitting on this commission for quite a time, and i was here for all the environmental analysis regarding the central subway and the preferred option was always meant to end in north beach. there was an option that would have ended the tunnel in chinatown. the preferred option, what we discussed and approved always envisioned the tunnel continuing all the way to north beach and that's what was

always a little bit of a question for me. if we're running it all the way to north beach, why doesn't it include a station? we knew the funding wasn't there and some other things. you know, it was not able to be done, but the plan for the tunnels is nothing new. and for another complaint about muni service being terrible above ground, i think the best way to solve that will be to have a subway that will take some of that traffic below ground and maybe it won't be as bad on van ness and other places particularly stockton street. i guess mr. funge pointed out the issue that if you bury the machines, then if you bury them in a site where you want to extend the tunnel in the future, then you're going to have to extract them at some future time. and you may not be able to bury them indefinitely and they have a value and they can be reused. so, i think this is a very good plan. i would like to ask city attorney kate stacey, i don't

know if you heard earlier testimony and a question raised by former supervisor and board president peskin about the approval of a cu today, absent the formation of an sud by the board of supervisors, i think we've done this many times and i don't think this is anything new. we've done it for quite a few projects, but perhaps you could comment on his allegations. >> president fong, kate stacey from the city attorney's office. commissioner antonini, that's correct. the planning commission has on several occasions approved a conditional use permit contingent on the effectiveness of legislation that may be necessary to make that conditional use permit possible. so, where the board has to act on legislation, the cu would not be able to become effective until that legislation