is exempt from environmental review. following planning's presentation, we'll hear from the real party in interest who will have up to 10 minutes to present. we will hear from individuals speaking on behalf of the real party in interest, and each speaker will have up to two minutes to present. and finally, the appellants will have up to three minutes for a rebuttal argument. colleagues, any questions or objections to proceeding in this manner as we typically do? and supervisor wiener as the supervisor for the district in which the project is located, do you have any opening remarks? >> thank you, president chiu. i am looking forward to hearing today the arguments of both sides relating to the appropriateness or lack thereof categorical exemption on this project. and i'll leave it at that. thank you. >> so, with that why don't we start the proceeding. let's hear from representative for the appellant, ms. brandt hoy. good afternoon, president chiu and members of the board,

supervisor wiener. i'm susan van holley, i'm here representing the appellants. and i'd like to start out by talking about categorical exemptions in general and of course as they apply to this project. and then i'll take some time to submit in pictures and documents for the record. i know the board is particularly familiar with categorical exemptions recently in light of the chapter 31 proceedings that are the amendments going forward. so, i won't take a lot of time. but basically the legislature that's allowed categorical exemptions because some projects are so minor that they don't warrant taking the time or spending the money to do environmental review. there is just to reason to do an environmental review for a lot of projects, thousands and thousands of them go forward in this city and around the state all the time. and so it should be. there are, however, circumstances when a project, even though it fits into a categorical exemption class, is

not appropriately categorically exempt. and that's when you have an atypical project that has potentially significant environmental impacts. and that's what's before you today. there are some complications at the outset with this project because we have -- i was thinking about -- trying to figure out what makes this project so different and what's so troubling and it starts with the fact that it's a segmentation. c-e-q-a, the california environmental quality act, requires that when a project is being reviewed, you look at the whole of the action, quote-unquote, the whole of the action of the project all at the same time. otherwise, you can segment environmental review and the cases and the statute and the guidelines say that you should not, you know, once you chop up a project into pieces, each piece may seem not to have an environmental impact but you have to look at the whole. and what happened here was 10 years ago there was a proposal to build a home on this very small site in between these two

very large historic buildings. one is an 1895 queen ann victorian, the other a 1906 combination of an edwardian and craftsman style home. one is listed and one appears to be eligible for listing. anyway, the siding question is a small lot that had a carriage house initially for the house on the corner of the queen ann victorian. and when the project was proposed, there was a lot of concern about it and there were fully discretionary review requests made to the planning department. that was settled at that time and part of the agreement between all of the neighbors with the project sponsor whos was the same project sponsor before you today, was that the third story would be removed and that's what happened. and i did have the plans that we obtained from the planning department that show -- can you see that or not? >> we can see it. final approved plans, and

i'll submit those for the record. and, so, now fast forward, the house has been built and now the project sponsor is back asking again for this story that was not approved. so, when you really look at the project at issue here, it's the project that's before you today as opposed to the project that was -- that occurred -- update approval was made 10 years ago and it was subsequently built. and the problem is that this looks like a small thing, 600 square feet plus instead of looking at the whole project, which was mitigated essentially, but the impacts of this project were mitigated by taking off that extra story. when this went to the planning commission, two of the commissioners, commissioner ant anyone i and commissioner hilless both discussed adding a story and actually denied voting against the project because they were concerned that of the impacts on this very important architecturally significant neighborhood, that the character defining features

of these two large historic homes on either side of the proposed project would be blocked by this third story. ~ there are other environmental issues relating to the blockage of views from buena vista park and blocking a view from a park -- an oceanview from a park is an unusual circumstance. also, the light and glare caused to the neighbors, the lack of privacy to the neighbors, and inconsistency to the number of the city's residential guidelines, can including compatibility with adjacent buildings and introduction of light and glare ~. and i've put them forward more in my letter. at the planning commission, commissioner sugaya agreeing -- by the way, commissioner sugaya announced for the record he's an architectural historian, that the project -- the two buildings on either side are in fact historic exceptional resources. so, we're dealing with impacts to the historic resources here and the context is very

important and c-e-q-a provides for that. to mitigate the acknowledged impacts from public views of these magnificent historic resources in this neighborhood, the planning commission attempted to make conditions to the project that would resolve some of the problems. and because of the way that it occurred, and we put that on the record, and also because of the fact that the -- this building, the site plans for the original building were not accurate and this, in fact, the property on the corner is actually setback four feet further than is represented on the site plans approved 10 years ago. so in order to protect the views of the turret one would have to move back the setback quite a bit more. adding all these things together, you have a project that potentially significant environmental impacts and unusual circumstances, and therefore you can't make a finding and the city was incorrect in making a finding that there's no possible environmental impacts. you have a very dense project,

glass, light, glare, blocked views and an architecturally significant neighborhood. that does not qualify for exemptions. >> supervisor wiener, do you have a question? >> yes, thank you, mr. president. >> can we hold the clock while you're asking the question. >> i just have a few questions and i'll let you finish your presentation. i know we have pictures left. >> great, i want to see the pictures. so, you mentioned segmentation which is also referred to piecemealing. ~ quote-unquote piecemealing. yes. >> you can't take a project and break it up in smaller views and say it's dee minute miss, so, therefore, there's no environmental impact report. yes. >> you have to take everything in aggregate. environmental review at all is what we're talking about here. >> and, so, 10 years ago there was one story added, is my understanding?

well, they stripped the house that was there and built another house. >> built another house, exactly, i'm sorry. it used to be there was -- i had a picture -- let me just put it here. that's the old house which was two. >> right, and it was replaced with the new construction. and then now they want to add an additional story? yes. >> so, if -- let's say that the current structure that was there had been there for 50 or 60 years and it was the original construction. so the carriage house. >> the carriage house was -- let's say back in the '40s or whenever it was built, they had the modern architecture. let's say it was there in that form, it had been there for a long time. in terms of your argument about segmentation or piece metionv, would you still be arguing that

adding this additional story would require the environmental review for which you're advocating? ~ i'm just trying to understand your argument. >> no, if this project sponsor came forward with a three-story project, ~ there was an agreement made that the project in this modern design with glass which is very different from the previous homes, that it could go forward if he took off that upper story. >> that was 10 years ago. yes, the same project sponsor. >> so, i understand that. i'm asking you to assume that the current -- what's currently there, if that had been there back to the beginning and there had never been any project until today -- it would not be segmentation. i don't think there is a strict definition that would be segmentation. >> you purely make an argument that segmentation, that you're saying is occurring, somehow plays into whether or not we have to do an environmental impact report or some sort of higher level of environmental

review. go ahead. go ahead, i'm sorry. >> no, please go ahead. i think you -- i'm just saying as a factor, you look at everything combined. in if herxv of fairness and figuring out what makes sense here, the key issues are potentially significant environmental impact. but -- so, that's the key. but the fact that there is segmentation means we didn't get environmental reviews 10 years ago with the whole of the action because thish other you was settled for an agreement not to put on that story. and, so, if you agree that a project may go forward, that environmental review which is essentially what happened before. and then a certain period of time goes by. and the mitigations are taken away and the agreed upon problem resurfaces, then i think that's -- it's kind of reverse segmentation. normally this comes up with someone proposes a project and only proposes part of it, but there is evidence they really are going to do more in the future. and here it's kind of the

reverse, that that is what happened. they did plan to do more in the future. and we may in five years have them come up with a first story after the third story should it be approved following environmental analysis, which it may well be. we don't know what will happen. the fact is there is a significant impact. so, segmentation is, i think it explains and helps to understand more than being the key to the environmental problem that triggers the need for environmental review. >> i guess in terms of the agreement that you mentioned and also light views and shadow, i guess the question is clearly all of those issues seem to be very appropriate and discretionary review in terms of they agreed to this 10 years ago, or this is blocking a view or causing a shadow or having impacts on light. i don't think anyone would dispute that those are extremely appropriate and the dr at the planning commission or appeal about dr to the board of appeal which i understand is

pending and stayed pending here. my question is how does that translate into a c-e-q-a issue as opposed to a dr issue? because as i know that you know better than i do, c-e-q-a is a very technical proceeding. and as opposed to dr which is much more loose about all the different considerations about how you want homes to relate to one another and how you want a neighborhood to look. so, that's why -- i've seen those references about the agreement and the light and the shadow and all of those things, which i agree are very much the issue. my question is how are they c-e-q-a issues? thank you. it's a good question. and dr, sometimes there is an overlap and that's what happens here. dr to some of you which was granted in this case, right? the planning commission did grant discretionary v. view. and often the issues before the

planning commission with design review or discretionary review as you call it here relate to design that did not raise an environmental issue. ~ review but light and glare are. the pendency in c-e-q-a talk about esthetic impacts. they talk about scenic een vistas. light and glare are environmental -- views are environmental, and impacts that restrict in the context of an historic resource which you have here on either side of this home, those are environmental issues. there is all kind of cases about them. so, it's not just a matter of -- unlike most dr situations, this one presents actual environmental issues protected by c-e-q-a and that's why called out the appendix g light and glare issues. but as to esthetic issues and views relating to any kind of scenic vista which we have here. we also have a specific c-e-q-a

statute about historic resources with a guideline talking about impacting the surrounding of the resources. you have three planning commissioners who had the opinion that this particular addition to this particular project at this site -- it's a great house. the problem is the site, it doesn't fit into this particular location. they have an opinion which gives you substantial evidence per se that there is a potential environmental impact. so, it's not your run of the mill situation here. >> so, is it your position that the statements that the planning commissioners, i'm assuming you're talking about the setback they required, that that is automatically substantial evidence of an environmental impact requiring higher than a cat ex? we have more than that, we have commissioner antonii and commissioner hillis, the character defining roof lines

of the a jaytion entitle homes. it is not just the setback, but the whole third floor edition. >> so, the statements by planning commissioners, you believe, constitutes substantial evidence that basically invalidates a cat ex? in this particular -- not every time, but in this time and it's actually a casey handled, architecture heritage soresction very urs county of monterey says a statement regarding impacts due to historic resource. commissioners appointed to the planning and land use expertise, [speaker not understood], pocket protecters versus sacramento says the same thing. so, it is -- the point of the commissioners for their expertise. ~ appointed if they opine on an environmental issue and it's not solved, it's not [speaker not understood] to have a categorical exemption work. there need to be a study and analysis made. when you have a project in this important of a site with this kind of impact. >> if you have planning commissioners who order say a

setback or some other form of discretionary review to make an adjustment based on the esthetics of the neighborhood and the home and the interaction with the surrounding homes, that seems to open up a pretty broad category of possible higher levels of environmental review for relatively small home projects. if that's what your position is. and i think one of the issues here, i know you and i have spoken about this. and i've spoken with both sides about it, is having to do with precedent because clearly when this board, as you know, takes on actions on c-e-q-a appeals, the planning department can certainly take its lead -- take our lead and it could impact a wide array of projects which is why it's important to apply c-e-q-a within the four corners of that law. i would like to start with the last thing you said, supervisor. this board has to apply c-e-q-a

within the four corners of the law. it may have impacts on the city projects, but it's state law. so, the city can't make a decision respectfully -- >> i disagree. -- what the impacts might be. i think, supervisor, you may be spelling trouble as i came to lecture my son about, not that you're my son's age. new way, you're making too big of a statement about something that is very factual. this isn't a normal situation. it's not just oh, let's design wise we think it would look better, which that's what the planning commission might do in other situations. the fact that they changed the setback or felt that a design would be better a different way, that's not what's going on here. we have a tiny lot between two large homes, and lot coverage and the light and glare and the impacts on the adjacent properties are significant. and that's not a normal design situation. so, i think that your worry about setting precedent, while i understand it, is not really

applicable here. i don't think that's what we're doing. we've got a record that's going to [speaker not understood] for specific situation that's unusual. you don't have a lot of 1900 historic, you know, extant resources. and the ones you do have you should protect. but that's a limited number. it's not a building. that just happens to be more than 50 years old and, et cetera. these are unusual circumstances. this is a very unusual lot and we also have the issue of the park view, et cetera, and a lot of views from the road of these architecturally significant huge homes. >> but in term of the protected views, i can't remember the term you used in the brief, i'm sure you saw the planning department's response where the department indicated that because the views that are at issue are not -- and the phrases they use were designated scenic vista or a, quote, scenic public setting, but it's not protected under

c-e-q-a. i don't want to speak for planning, but this is my reading of their response, and that to protect the view would -- could have dramatic impact in terms of -- there are a lot of different views in a lot of different settings around the city. so, can you respond to that particular argument by the planning department? yes, the city can't set legally a threshold that's significant and say -- you have to get to this point, you have to only impact a designated scenic view or else we don't call it an impact to a scenic view. and there is case law on that community [speaker not understood] environment, 2002 case where the c-e-q-a guidelines were being amended to say the city could set thresholds of significance when they're making the initial decision about whether to do environmental review. once you get into environmental review, the city can set its own standards about what it protects and what it doesn't. when you're saying something is exempt and doesn't have to do any environmental review, you can't set a standard and state

law doesn't have a standard for scenic advice taz and how they define it. ~ vistas the argument was the only vistas that are really protected are wilderness. scenic views, ocean views are one of the views that is one of the protected views and urban views, views in suburbia, are not protected. the court upheld it is good law. urban views are also protected. that's where most of us live. to protect the views and the character and the beauty of a city is just as important as protecting a wilderness vista. so, there's nothing in c-e-q-a. you're not setting precedent. you're not opening doors to say that a -- we're talking about year of fabulous historic resources from a public park and a public road. >> would you agree that any vertical addition in a city

like san francisco will have vista or view impacts in terms of how we view our city? it's hard to imagine any vertical addition doesn't have some sort of impact on what we're able to see walking around our city. that's true, but it needs to be significant to be important under c-e-q-a, and here we have planning commissioners saying so. so, i think that's the difference there. any person saying i think it's significant may not be enough. but these are a difficult area -- >> are we bound by statements from planning commissioners? is that really your argument? well, it depends on what they're saying. as planning commissioners, [speaker not understood] i want a setback because i think it will improve the design, that doesn't trigger environmental review. a planning commissioner statement that this project is going to block views of character defining features of very significant historic resources and we don't think it's appropriate, yes.

>> okay. you can proceed. but i wouldn't word i about the precedent. that's not going to happen every day. that's an unusual situation here. that's atypical. and just the converse, supervisor, is you're saying this is exempt from environmental review. and to make that finding this board has to say there's no significant environmental impact and how can you say that in this particular situation? and the fairness of it, i think -- i just think that helps, the fact that this is an add-on from a project that was previously settled. >> thank you. thank you. >> okay, counsel, you still have a few minutes left on the clock if you wish to use it. actually, if you could please speak into the mic. turn on either mic, depending which one you use. i'll try to do this so i can use the documents. they surveyed the properties and worked with an architect bruce teal who is here, and they looked at the mn surveyed

and saw that the site plan approved in 2002 in fact represented the location of the largest homes, the victorian on the corner is being four feet closer to the roadway than it really is. so, i'm going to submit for the record that this document showing the way that the site plan was approved and the way the survey shows that where the homes actually sit. and this makes a difference because, well, it affects the setbacks because they're required to be an average between the homes on either side. so, the setback is a couple of feet off and it affects the views of the turret that the planning commission thought it was mitigating as well as other impacts. i'll just go through the pictures and submit them for the record. we already have a picture of the prior home on the site. this shows -- the prior home was next to this gate and this one, as you can see, they moved it out a couple -- it looks

like a couple feet. that is consistent with the drawings that we have. we received an e-mail from a neighbor who shows that the light and glare impacts of the project are basically the blocking of light and air. this is a picture that shows with the addition a blocking of the view -- this shows the blocking of the oceanview as well as from the property next door. this picture also shows the site line from the park, it is showing the blocking of the oceanview. this is a picture also showing the blocking of the character defining features of the roof line. this shows a very similar type of blocking of the historic resources. again, most of these are in the record. i'm not sure if they all are.

another picture showing the blocking of the visual impacts. and i also wanted to submit for the record the real time transcript from the planning commission. it's a little hard to read, but it documents what the comments were of the commissioners as well as commissioner sugaya are in fact -- he said i agree. buildings next door on the sides are historic and exceptional. and the placement and forwardness of the project bothers him in relation to that. we ask that in this situation, a special situation, an atypical situation, we truly do not think is opening the door. it is only complying with state law that the categorical exemption should be set aside. we're not requesting a specific environmental document. we ask that an initial study be performed and the staff can dee said what's appropriate then and there may in fact be project amendments.

as i said in my letter, i've been involved in at least three categorical exemption appeals in the past, maybe five to seven years and we've always worked them out because they know if they come to this board, the board is going to do the right thing. and the categorical exemption may be set aside and it's an impetus to work things out. that said, it should be as well. >> mr. president? >> supervisor wiener. >> thank you. just on that particular point about the impact study and sort of the working things out, and again, whether it can be worked out, of course, is not relevant to whether the categorical exemption is appropriate. but one of the issues in this case, there's a pretty sharp divide in terms of adding a story or not adding a story. as i know you know, there were other projects where there is much more room around the edge to negotiate. that's a fairpoint, supervisor. >> i guess you're requesting an impact study which as i

understand that would then lead to a determination of whether there would be a mitigated negative declaration or full environmental impact report. well, may i just comment on that? >> yes. not an impact study, an initial study it's called, that would be the staff's initial determination about what the impacts are based on all the information we now have before you including the survey, and they also have the benefit now of the planning commission report. and in terms -- oh, the other thing i wanted to say, not necessarily a full environmental impact report. they are allowed to be focus reports. it may well be a specific issue of that this e-i-r would focus on if an e-i-r was determined to be correct. and that can be a modest document that allows public review and comment and the appropriate process because it's not legally exempt. but it could be focused. when you say full e-i-r, it sounds like something huge, and

may not be. small quick moving e-i-rs for projects like. this >> [speaker not understood] i wouldn't want to prejudge what that initial study would show. but it would seem on first blush, an e-i-r would be more likely than a negative declaration because even though we're adding the story or not adding the story, i don't know what the mitigation would be that would allow for a mitigated negative declaration because that mitigation, i think from the arguments you're making, would be removal of that story, which would, i think, mean no project. we don't know what other mitigations could be possible in terms of making the story -- making the floor smaller or not, using as much glass which is causing the glare impact. so, there are mitigations and changes that could possibly occur. but if they look at the whole project, yes, the mitigation, the prior mitigation which seemed to be removing that floor may require removing an e-i-r. i don't think that is likely. i don't think that necessarily

means a long, drawn out extensive process. and it is a stout law -- if it does, it does, and that's the state law. >> i appreciate it. thank you. thank you very much. i'm not sure where i should put these documents just for the record. >> you can submit them to our clerk. thank you very much. >> okay, colleagues, any other questions to counsel? all right. with that, why don't now hear from members of the public that wish to speak on behalf of the appellant. if there are folks that wish to speak, please line up on the right-hand aisle and each member of the public shall have two minutes. good afternoon, supervisors. my name is matt leffers and i just want to -- >> i'm sorry, every member of the public has up to two minutes. doesn't matter what their role is. if they're a member of the public they can speak. please proceed.