planned parenthood and see what we do. the mother and this child and his mother would have been here today, except his parents got married recently and they are expecting their second child. she is not feeling too well today. this is his picture and please come out and see what we do, because it's very effective and we don't harass anybody. >> thank you very much. >> it's now 4:00 p.m. and we have a special order at 4:00 p.m. and i will go to that order and madame clerk could you call items 19-22. item 19 is a hearing of persons interested in orb objecting to the planning commission's decision datesed march 21, item

20 is a meigs affirming the certification. item 21 is a motion reversing the certification. >> item 22 is the motion directing the clerk of the board to prepare findings reversing the certification. >> to the audience, we will continue public meeting. because we have a special item and many individuals from the public who have come here for, that we will take up that hearing. with that, as we have done with other appeals of final environmental impact report we will consider the adequacy, accuracy sufficientry and completeness of the final environmental impact report of which you all have copies. today's hearing will proceed as follows: we'll hear from the appellants and i understand there are two groups of appellants and collectively they have up to 20 minutes in total to describe the grounds for appeal. if the appellants want to use their time, ten minutes apiece or divide their time up as you see fit. we'll then take public comment

from individuals that wish to speak behalf of the appellant and them we'll hear from the planning department that has up to ten minute their grounds for the certification of the final environmental impact report and then 20 minutes to present and hear from persons speaking on behalf of the real parting interest and finally appellants have six minutes for a rebuttal. sorry, a total of 20 minutes for the two appellants and total of 20 minutes if the planning department chooses to use that time for presentation. a total of 20 minutes for the project sponsor and of course, you don't have to use the full 20 minutes, but we want to give everyone equal time and finally 6 minute rebuttal by the apellants. colleagues, unless there are questions, i will ask supervisor for opening statement >> thank you. i won't speak to the details of the project, which i'm sure the

planning department will go over as well. this is the 706 mission site in one of our highly growing residential mixed-use neighborhoods here in the south of market. it is is 47-story, 215 residential units building along with four floors of museum space, also known as the mexican museum, which this project is also referred to as. we do have both apellant attorneys today. and we'll have a number of questions for both appellants and planning department. we will move forward with the proceeding. >> thank you, supervisor kim with that i will ask representatives of one of the two appellants to step up and again, you have up to 20 minutes, mr. lippe, will you use ten minutes? >> ten minutes for my client and ten minutes for the other.

>> why don't you proceed. >> thank you, board of supervisors my name is top lippe. and i am here for a group of appellants including the 765 residential owners association, the friends ever yerba buena and five individuals, paul wornick, matthew schoenberg, joe fang and margaret collins. i have written quite a bit of material on the appeal and i'm not going to try to summarize all of that within this limited time. i will try to hit high points and crystalize what i think are the critical issues for the board in thinking about the problem with the eir and its function to disclose to the project the environmental impacts to the public and those that are significant and those less that significant and for those that are circumstance to identify mitigation efforts that would substantially reduce

the impacts. this eir does not do that in a number of areas and i want to start with historic preservation. and beforid get into that, i want to deliver to the board one more piece of paper. i received a supplemental response from the planning department yesterday. and a brief from the applicant this morning. and i have tried to pin a few responses to that in a letter and i have 13 -- 12 copies of that and then i have 12 copies of a letter from catherine petrin, one more, excuse me, miss clerk. she is the architectural historian i retained and she has responded to the reports attached to the applicant's brief, which we received this morning at about 8:15 in a very quick and summary fashion.

but at bottom this eir fails to deal with the historical president impacts of the eir in a fundamental way, which the planning department and the applicant have now conceded the basis of. when this appeal started i pointed out that the historic preservation staff/planning department staff had made a legal error by assuming that the tower portion of this project is not within the historical preservation commission's permitting jurisdiction. both the planning department and the applicant have now agreed that that was a mistake. and have morphed to correct it. well, that has ramifications. one of ramifications is that it's now clear why the eir does notice actually assess the impact of this very large and hightower on the conservation district. because it wasn't part of the regulatory setting and project

description. the eir starts with what the project is going to do and the regulatory setting in which it's going to occur. the ceqa guidelines are clear that the eir has to include a discussion of the extent to which a project is inconsistent with a governing land use plan and article 11 of the planning code is such a governing land use plan and here we have a 47-story building attached to a much smaller building which will increase the height of that resulting one building by 40 stories, 39 stories, actually. the article 11 says you can't do that with a significant building. you can only go up one more story. so it's a very flagrant violation of article

11 ignored by the eir. the applicant says that is the zoning code stuff and it's not ceqa stuff. well, it is ceqa stuff. it's ceqa stuff because ceqa requires the eir to look at inconsistencies with governing land use plans, such as article 11ed. it's also ceqa stuff because the inconsistencies with article 11 are germane to the impact. these are not zoning provisions that are about something other than environmental impact. these are about environmental impact. the historic resources of this district and of this building are environmental resources of the city of for san francisco and its residents and this building is completely out of scale. the consultants for the applicants to jump through the

hoop and the planning department says what the irsaid eir said about the scale of the tower, it's in line with the district. the applicant talks about the fact there are other tall buildings within the district, as if that somehow makes it okay to add another one and it does, in fact, show the sensitivity of the resource. appendix f of article 11 defines 3-8 stories, not 47 stories, note 40 stories, et cetera. so it's very much about ceqa article 11

violations are very much about ceqa. i have four minutes left and i want to crystalize the topic of shadow impacts, shifting gears to planning code 295 and shadow impacts on union square. there this case, part of the project description is to raise the cumulative shadow limit that the planning commission and rec and park commission adopted in 1989 and recently modified for the transbay project to increase the cumulative shadow limit and now they are going back to that well again to increase the cumulative shadow limit again. that is part of this project. so this eir those look at the environmental effect of doing that before the planning department and the rec and park department can raise the cumulative shadow limit to accommodate the shadow this project will cost on union

square. this does not look at problem of a moving base line. every time you add more shadow, even in the early morning, which is what this project is going to do and even at limited times of the year, you are going to cause people to change their patterns of usage. now the eir says well this particular increment is not significant. but it stays. so people stop going at those times. they might forget it's only a certain time of the year and stop going at any time of the year at those times. so the next project that comes along and tries to measure the base line for measuring environmental impact is looking at a changed condition. and this is also called "creeping incrementally." in the environmental field it leads to progressive deterioration of environmental conditions without any given project ever deemed significant. this eir ignores that problem, and finds that the incremental project is less than

significant and i think that is legally incorrect, because of the fact that the planning department -- excuse me, the planning commission and the rec and park commission seem to have decided that they can chip away piece by piece at the amounts of sun light in union square and other parks, but in this case, union square. i'm focusing on the legal issue because i'm a lawyer and also because those will be the ones easiest for others to understand later in the process, sich as judges. if you look at the san francisco noise ordinance and the noise analysis in the eir, for construction equipment, the eir says well-being under the san francisco noise ordinance, construction equipment is not fixed and therefore, it's only subject to the noise ordinance requirement of not emitting

80dba. but another part of the noise ordinance which the eir says doesn't apply to construction equipment recurnizes that interior noise limits of 45 at night and 55dba at night, are thresholds beyond which you have annoyance, injury to human health. so relevant criterion for ceqa, under the noise ordinance, but under ceqa the relevant criterion is the noise limit and the consultant i hired showed that the noise limits will be exceeded at the sensitive receptors that are closest to the site. again, a very clean legal issue, that this board should attend to. now with respect to air quality, i see i have one

minute yet, so i will try to summarize that this quickly. another clear legal issue >> excuse me, sir? >> yes. >> i think your time is up, but i will ask you a couple of questions, if you could first finish up your comment on this last point. >> i notice that you are missing a digit on your clock. i saw 1 and it was actually 10. i'm sorry, did you have a question? >> please finish your last point and then have a couple of follow-up questions >> so the ceqa guidelines do require that if the city or any agency is going to use thresholds on a regular basis it those have a public process to adopt those formally in a rule-making and [stk-pl/] that demonstrate that they are supporteded by substantial evidence. we looked at the eir page for the planning department this is

a regular basis. san francisco has not done this. it doesn't comply with the ceqa guidelines. the applicant's brief this morning says it's just a handful and if we have to go back and pull every single ceqa document offer the planning department's website and shows that everyone uses the thresholds, we can do that and we will. >> thank you. i have a couple of questions around shadow impacts on union square as the district supervisor for union square. because i think this is probably the first time this year we have had a project that implications proposition k, i am hoping that you can take a few moments to explain particularly for some of my newer colleagues that haven't had to grapple with these issues to talk about proposition k and its impact. from my perspective when the guidelines for proposition k

were implemented in 1989 that there were projects that took proposition k into account so they couldn't shadow one of the very few open spaces in the northeast neighborhood like union square. and you have suggested that there are substantial and potentially significant shadow impacts on union square and i'm wondering if you could first talk a little bit about what prop k did, so members of the public and my colleagues could understand that. and the question i am wondering, we have seen a number of projects from the downtown area each of which has been told to us do not create a significant impact on shadows the parks. as you have pointed out and i think i have wondered collectively, cumulative, it seems like all of these buildings are adding to shadow and are darkening what is one of the very few parks in the

neighborhood that has the least amount of open space on the west coast and i'm wondering if you could speak about it more broadly and then specifically explain again why is it that you think there is potentially a significant impact here. >> well, prop k as you said adopted by the voters to protect sunlight in city parks under the jurisdiction of the recreation and park department and without digressing too much, there are a limited number of parks are protected. it's not like every park in the city is. these limited number of parks were targeted by voters to be protected and selected times an hour before sunrise and an hour before sunset for protection and in terms of the type of protection and level of it was delegated to the planning commission and parks and recreation to adopt criteria,

numerical shadow limits for each park. the transit project recently approved required in order to find that the impact is not significant to raise that limit. i just submit to you that is a contradiction in terms. that we have a legal dispute going on whether the limits adopted are mitigations or conditions that would be recognized under ceqa? i have submitted case law today that i think they are. the applicant thinks they are not. regardless just from a policy standpoint, leaving aside the law, if you have already said this is your criterion for significance under prop k and actually let me finish the description of prop k, besides setting the criteria is for any given project to determine if

any additional shadow cast is significant or less than significant? so if you set your criteria for significance under prop k and now we ever a project that will exceed that, we're going to change the significance by increasing the shadow limit? it's just playing a game with limit under prop k. we're not here to talk about prop k. we're going to do that with the planning commission in a couple of weeks, but ceqa looks to other thresholds. and it looks to other thresholds to find whether impacts are significant or not. and you can't just arbitrarily select another threshold, but this f there are valid reasons to use another threshold as ceqa threshold, than ceqa allows that. in air quality, we don't think those reasons are valid for using the air district's thresholds, but here, the vote versus spoken clearly and i think it's a valid threshold to

look to. ceqa recognizes the logic and says if you have a measure that reduces impact, here we have these numerical limits under prop k and planning code 295, you can't just drop them willy nilly and have to justify it with legitimate reasons and it goess to the last point to your question, president chiu, the incremental impact is less than significant and i have argued that that is wrong. it also says the cumulative impact when looked at in combination with the transbay transit project and potentially future project is significant. and then essentially a one liner says there is no feasible mitigation. well, it's clear that a 351' building is impact

-- without a single dollar figure provided for the cost difference between the 351' building and the 520' by building being proposed, the case law is clear, you cannot do that. >> if i understand you presented in your letter some discussion around the public subsidy and it's your perspective that you think that this issue could be mitigated if the building for, for example not as tall as proposed? >> we think that issue warranted investigation and we strongly urge the board to require some independent financial analysis of the value that the city is giving or transferring by virtue of increased floor area, the real estate, the garage area and what is the city getting back? is it a fair deal is one issue.

the other issue, the burden is on the applicant to demonstrate in in order to demonstrate that. >> thank you, colleagues, questions for mr. lippe? >> thank you very much. we'll go to miss brandt-hawley. >> good afternoon president chiu and members of the board, i am miss brandt-hawley, on behalf of the tenants and owners development corporation and yerba buena neighborhood

consortium. the prime issue is pedestrian safety and the inadequacy of the eir related to pedestrian safety and traffic. a lot of it comes down to commonsense of we all know there are significant problems in this area, and it's a very dynamically growing area, a unique area with conventions and museums and all kinds of growth. standard methodology to study pedestrian safety and traffic doesn't work in an area like this. you need a methodology that is tailored for this kind of an area. the city staff and the eir basically concede that there are significant issues here. there is talk about the central corridor planned eir to look at cumulative pedestrian impacts. not surprisingly i agree with mr. lippe in terms of the fact you can't ignore the

incremental effects of each project and defer to a wider analysis or averaging. you have to look at each project and if you have a problem, you think of it in terms of flooding or traffic. if you have a full glass of water and a project adds a little bit of water, it's going overflow. when you have a problem incrementally, you add to the problem and you can't individually look at projects unless you have done the cumulative analysis ahead of time. here you don't have it. and because you haven't done it, you can't approve a project without the underlying study and president eberling is here, unless there are questions i will defer to mr. eberling. >> i have the copies for the

record; good afternoon, supervisor, i am the proceed of the toddcogroup and consortium and we're here today, including a number of our senior residents from yerba buena, because over the years the city has refused to evaluate ped pedestrian safety and the projects over that time period and including this most recent eir, the 706 mission museum condominium project. the cumulative impacts that all of these project have on our

neighborhood 2,000 plus elderly and disabled residents. in those eirs the city has insisted on using methodologies that knows or should have known that failed to provide the cumulative data and perform the cumulative analyses to document the impacts of the pedestrian situation in our district. with identified specific mitigations, that would address those impacts. and undeniably, especially, the unique circumstances of the moscone convention center and yerba buena gardens that have so many large scale special events and conventions that are unique, don't happen anywhere else on such a regular basis in san francisco. instead, the city has chosen to apply a general methodology

that applies anywhere in downtown, which does not take into account these undeniable peak loads that are frequently generated by conventions and special events. an exact analogy would be if the city prepared an eir for development next to a major river, that only took into account the river's normal range of seasonal flows, but never evaluated flood conditions, that occurred periodically, although not every year and especially the worst case, 100-year flood scenario. such a profoundly flawed eir would be inadequate and would lose in court and as mitigation, such an actual project could be designed to accommodate the peak flows and floods. here in yerba buena, the moscone center undeniably generated concentrated flood pedestrian loads on our

neighborhoodss and sidewalks dozens of days every year and the equivalent of our community, the 100-year flood, the events that totally saturate the district for an entire week with over 40,000 attendees and all day long, i may add. nor do these floods occur in isolation. there are other major attractions in the district. the museum of modern art, with a projected attendance of 3 million people a year who all walk to get there, at least the last part of their trip and of course, upcoming is the expansion of the moscone convention center. this is why an honest good-faith eir for the city for any project in yerba buenhuh a has to have been a pedestrian

safety analysis in addition to its general downtown assessment. impacts would be inevitable if they did this and that is why we don't do that. they know that and don't want to make that finding. that would then require a list of specific mitigation measures, including major expansion of pedestrian capacity in our neighborhoods and major safety improvements to our crosswalks and other pedestrian areas. and there would have to be identified responsibility for which city agency was going to do this. we don't trust the citis a good faith anymore. there has been 15 years to get to work on this problem. it's notice a new problem. we have been raising it since 1982. the problem is, in fact, the city keeps manipulating this.

the problems are solvable and can be fixed. it doesn't take a lot of money. it takes good faith and serious action. thank you. >> thank you, colleagues, any questions to the appellants. >> thank you, mr. eberling and miss brandt-hawley. i live near the project and experience the radical growth in the neighborhood and whether we as a city have done an adequate job of planning for this increased density in terms of impacts that we have seen, and certainly this project in and of itself will only be a piece of what we have seen in this vast development. i question whether in previous eirs we have