>> welcome back to the san francisco board of supervisors land use and economic development committee committee. i am scott wiener the chairman of the committee. to my left is supervisor david chiu, a member of the committee and vice-chair supervisor jane kim will be joining us momentarily. we did convene at 10:00 a.m. this morning and heard item no. 1, which we continued and then went into recess until now. so madame clerk, would you please call item no. 2. >> an ordinance amending the planning code by adding section 249.70. >> thank you. and item no. 2, the author is supervisor david chiu. supervisor chiu. >> thank you, mr. chair and i want to thank you for scheduling today's

consideration of a suded is at site of the pagato palace. the pagota theater site which has been a blighted site for almost two decades. by way of a little bit of background we have come a long way since this issue was first brought to our attention late last spring when hi office got a surprising call the same day as the first community meeting to provide details about the proposed construction on columbus avenue. in 2008, the plan to extract the tunnel-boring machines in north beach was approached by the sfmta and the planning

commission. between 2008 and this past may the sfmta did not do any outreach about the construction plans in north beach and when my constituents learned about this -- director reisk and many other staff from the mta met numerous times to hear concerns raised between last summer and the last few weeks. and to recap the sfmta began considering a number of alternatives to the columbus avenue extraction, that were raised by my office and the community. and presented four options at a community meeting last november. the pagota optioned was welcomed by most attendees, as well as leaving the tbms in the ground north of the chinatown station. i want to thank the sfmta staff for studying the option we're looking at today and presenting

it an alternative. the board directed its staff to pursue the pagota a option. first the pagota theater option is far less disruptive to the community. secondly, we will be tearing down a 15 plus-year blighted eyesore that the neighborhood has wanted to move forward for many, many years and thirdly, this is an option that leaves open the possibility of extending the central subway to north beach and beyond. now part of the reason why we have had to move this item so quickly is the central subway construction timeline is extremely tight and if we slip on the timeline, able to result in significant cost increases to the project. the sfmta needs to begin

demolition in early airplane. both the sfmta board and planning commission have approved different aspects of moving forward this particular proposal, with regards to north beach and the central subway. on february 19th, the mta board approved a two-year lease between the mta and the pagota palace a lease that includes 400,000 dollar and reimbursable costs such as attorneyfees and construction inflation, all of which need to be demonstrated by the owner. an additional cost up to $6 million for construction changes will be paid for through the reserves the sfmta and i understand that the sfmta is seeking reimbursement from the federal transit administration. what we have in front of us is the sud legislation, to describe this briefly and then i will ask kevin guy from the planning department to go through the

specific provisions. the owner of the pagota theater has had existing entitlements which would allow him to construct a mixed-use building on the site, essentially a ground floor restaurant, condos on top of that, and parking spaces below it. the lease agreement assumes that the owner retains his existing entitlement rights after the two years that the mta will spend on this site. specifically the sud will change the planning code to allow the pagota theater's owner proposed development project to move forward after the dem litigation of the building and after the sfmta uses the site for extraction. before this proposed extraction relocation, the pogata theater owner had a fully entitled site. the fact it was technically a rehab, only a few roof trusses would remain, aloud him to build within the existing building envelope. the mta needs to demolish the building in order to boyd the

boxes -- the planning commission approved both last thursday, the cu permit is contingent on what is in front of the this committee today. i would like to ask kevin guy from the planning commission to go through this. this sud specifically prohibits the height. i want to take a moment to thank the sfmta and other city staff members including the planning department and the city attorney's office who have worked extremely hard in the last couple of months to make this pagota option a reality. i want to thank director reiskin and staff for leading the negotiations and keeping the overall process on track.

and take a moment to say that it's a win-win for north beach, for the city and for the community and i have very much hope colleagues that you will be able to help move this forward with recommendation from this committee today to go to the full board tomorrow for approval. with that, mr. guy. >> thank you, supervisor. good afternoon, chairman wiener and members of the committee. my name is kevin guy with planning staff. before is for legislationing to reclassify the site from 40' to 55 height limit and adopt the central subway boring machine tract site sud on the property. the legislation is associated with the central subway's project, but specifically with the development proposal for the property that would demolish existing building and construct 18 dwelling units,

restaurant and 27 off-street parking spaces. as was mentioned following demolition of the existing building the site would be used for the extraction of the tunnel-boring machine equipment and to recap on february 14th the planning commission did approve the conditional use. the sud is necessary to allow the construction of the project that was previously approved as rehabilitation, but to resolve areas of the conflict with planning code that would not allow the project to proceed as new construction. and to address several specific issues regarding the program of issues in the project. specifically the sud would address requirements regarding rear yard, dwelling unit exposure, off-street parking, building height, ground floor ceiling heights, allowing of a restaurant use at this location, allowing a non-residential use which exceeds 4,000-square-feet and allowing the reconstruction of the existing sign. all of these provisions in the planning code would need to be

addressed in order for new construction of the previously approved project to proceed. so i would be happy to address any of these in more specific detail for you. this concludes my presentation and i'm available for questions. >> does the sfmta have additional comments to make? mr. chair before we go to public comment, i want to mention one thing, which is i think if we had proceeded with what had been the original proposal, it would have been incredibly disruptive. there are a handful of adjacent property video raised concerns about construction impacts to their businesss from the use of pagoda palace site and i want

to reiterate that i know the mayor's office on workforce and economic development and my office, we're all committed to working through the life of this project. i know the mta has scheduled a meeting in the short-term to discuss construction plans, timing and approximate that being said, i think that the proposal we have in front of us is a far less disruptive project than what we were originally presented with and again, i want to thank the members of community city staff for coming up with what i believe is a win-win option for the community. mr. chair. >> thank you. so with that we will open up public comment and if you have not filled out a card and you wish public comment, please do so. i know there are folks in the audience for the next item about the western soma plan and it makes sense for you to fill

out a card now, so we can be prepared when we get to public comment during the item president chiu. >> we have a number of cards and i will call them. [ reading speakers' names ] in addition to that if anyone else would like to make comment on this, please submit cards and line up on the right-hand side of the chamber facing us. >> mr. chair, two or three minutes? >> two minutes. >> may i begin? >> yes please. >> must name is tom lipy and i represent howard wong and save muni.com with respect to this project and i want to start by making sure that you have all the letters that i submitted both to the board of

supervisors, also to the planning commission and to the mta. those are three letters dated february 5th, 14 and 19th and they attach letters from a geotechnical engineer larry carp. i noticed in your agenda packet you only have the february 5th letter. so i want to make sure you have all three of them and i will hand them to the clerk in a minute and have i a new letter dated today related to the appeal my client filed with the planning commission's approval of the conditional use authorization for the project. so most of my comments on the substance of this project are set forth in the letter. letters. the new issue here is the appeal that my client filed last thursday. the clerk has rejected it this

morning on the basis of a city attorney opinion. and i wanted to give this board the opportunity to reconsider that decision by the clerk. the city attorney opinion takes the position that because a planning commission decision to approve the conditional use authorization without first preparing a supplemental eir, as we believe is required, is not an appealable decision to the board of supervisors. we think that is wrong under public resources code second, 21151. the city attorney opinion does not address the primary question, which is what is the legislature's intent? as the supreme court has held in a number of cases the legislature's intent is that ceqa provides that elected officials be responsible for the environmental decision-making of their jurisdictions. and so for the planning commission decision to proceed with the conditional use authorization without preparing a supplemental eir, for that to

not be appealable shields the elected officials from stating on the record what their position is on the issue. and therefore, exempts them from this purpose of ceqa, which is to provide public accountability, so that the public and the voters can take action to change their elect officials, if the elected officials take action with what they disagree. so that is developed in more detail in my letter. the other issue here is that the municipal code once a proper appeal is filed does require a state of further consideration. i have addressed that in my require letter and ask you to take a look at that. with respect to the ceqa issue, the guideline provides that a supplemental eir is required if the project changed in a way. >> thank you very much.

>> take a look at my letters. >> next speaker, please. >> good afternoon. my name is lawrence b. carp and i'm a geotechnical engineer. i have been involved with construction in san francisco since the 1950's. i was asked to look at this site from a feasibility standpoint as to whether this extraction could take place without damage to the adjacent buildings. based on the published and private consultants' geotechnic information, this site is mostly sand down to 40-45'. to bedrock. and it has a high water table,

so the sand is saturated and loose and the current plan is building a box 40-60 or 50 or 70 piles that are drilled in place and they are intersecting and called secant piles. these are to be filled with concrete and steel beams every other one at least. and this is supposed to make it so water is only comes from inside the excavation. if water gets into the inside of the excavation -- so if that occurs, then it will be dewatering under the buildings, most of them over 100 years old.

and they have brick -- they all have brick foundations, so the buildings will be damaged. there is no two ways about it. it's a consideration that should be given before approving this project. thank you. >> next speaker. >> howard wong with savemuni.com. the pagoda theater is not the best option that avoids all adverse impacts on our north beach neighborhood. the pagoda theater still impacts several businesses, and for all we know, others as well. as you know, tunneling and subway projects do have risks. in the original approved final eir in 2008, the north beach tunnel was capitalized the

north beach construction tunnel variant. the base contract was the boring of the tunnel-boring machines in the chinatown area. we have learned since then, according to mta, that the northern tunnel will not be used in any way for conveying materials to the chinatown station. thus the northern tunnel has no construction use. thus, the north tunnel itself is no longer -- and it's rationale is no longer adhering and there have no reason to be built. the pagoda theater $1.5 million is unnecessary. the tunnel construction of 2008 is unnecessary. we can save up to $80 million by burying or extracting machines in chinatown or

burying them anywhere between chinatown and northern beach, as has been done in brisbane australia, which entombed them in concrete. the tunnel in the english channel did that. new york city's two subway and rail projects are entombing tbms. there are better solutions. >> thank you very much. next speaker. >> good afternoon. my name is -- and i'm homeowner in northern beach. i think fixing the pagoda is positive and eliminating union as a construction site is positive, butume not sure that the whole approach is appropriate planning approach for the city to take. we're moving the machines in north beach is really not economically efficient and i

think there was a lot of commentary on that that you have seen. the tunnel-boring machinery is just a ruse to use funds to extend the subway beyond its federally -- it's otherwise federally-funded boundaries. the november, 2008 federal document approving this explicitly lists a temporary tunnel for the extraction of the tunnel-boring machines and thus if there are no tunnel-boring machines there will be no tunneling into north beach. however, the city wants to tunnel into northern beach to get a start on the subway that will extend further. this is fine if it would properly plan. i am aware there has been no proper planning on the extension of the subway beyond chinatown, no community meetings on what path it should

take and how it would be used. we are starting to build for a future subway without the careful study and approval of what we are going to do. we need a plan before we start digging. so i suggest that somehow we take another look. your job as the planning commission is to take another look at the longer term plan here and ask do we really know what we're doing for long-term subway construction? >> thank you, next speaker. >> good afternoon, my name is lance kinds and i'm a resident of north beach and in a recent op ad in the new york times --

won't stay dead because it serves a political purpose, appeals to prejudices or both. krugman was referring to the ideas in washington on how to restore the economy that are provable wrong, but still trotted out regularly as being the way to proceed. in san francisco we have our own central subway zombie idea. if we bore two tunnels past the last station the subway gods will look favorably on this and some day award us with an extension to northern beach and francis fisherman's wharf. a total of $80 to 90 million are needed to keep this idea alive. there may be more time and funds required in the near future. businesses adjacent to the

pagoda will need to be compensated for losses and there is a strong likelihood there would be serious problems caused by water flows under the pagoda site as pointed out in the repeat geotechnical report by mr. carp. where will mta get the additional $5-10 million or more to resolve these problems? an earlier central subway plan had a reasonable idea. bury or extract the tbms at the chinatown station site. i encourage the city and mta to revert to thechinatown extraction reasonable idea and let the northern beach tunnels zombie idea finally die. thank you. >> next speaker. before the next speaker speaks i would like to call up the following individuals. [ reading speakers' names ]

those are all the cards i have, so if you wish to speak, you can line up, please. next speaker. >> good afternoon. brett gladstone speaking for the project sponsor. for about 15 years i have worked on development at this site. this is the first project that i worked on for the current owner, but in the past developers have tried to keep the theater even passing legislation at your board to create a dinner theater second story restaurant, which wasn't allowed by code. so i'm particularly pleased to be here today after 15 years with what i think is the best possible project. in 2009 i presented this project to the planning commission and as you know it received approval. the project that is made possible by this legislation is the same project.

after the approval in 2009, my client had fully intended to go forward and build it, but as you know the recession that started to hit badly at the end of the 2008 made financing and equity impossible. as he started to put the financing together to start again late last year, the city came and asked to borrow the site and obviously a majority of the neighborhood wants it and my client feels it's good for the neighborhood and as along as the site is delivered back within the next two years, the project will go forward. so i'm very pleased to say that the project sponsor is here in favor and i ask that you go ahead and vote for this. thank you. >> thank you, next speaker. >> hello my name is ann ross. i am here