that identified a height of a building that would not add shadow to union square. we are obliged under ceqa to analyze a project as it is proposed to the planning department. and that is what is contained in the eir. we are also oobligated under ceqa to look at reduction of significant impacts and we did identify a cumulative impact around shadow on i meanon square and the proposition k issue was the basis, as i say for your decision to include that 351' alternative. because an eir also needs to provide information to decision-makers to support an informed decision and so we felt that was a necessary piece of information for decision-makers; that what height the building would be to avoid that shadow on union square. >> okay. so in other words,

what you are saying is that the planning department is not necessarily taking a position right now with regards to proposition k. you are simply saying that the eir is adequate because you have looked at alternative, including alternatives that would not create shadows on union square and thus in compliance with proposition k, but in future your department is going to make another prop k assessment about whether the shadows are significant. is that what i am hearing? >> yes. we have -- the department will be addressing that issue in the context of, if the eir certification is upheld. if i could turn it over to diego sanchez. >> one other question i have and perhaps any of you could answer this. the apellant suggested this alternative exists that

wouldn't shadow union square and in the eir was a cursory response, yes, there is an alternative, but not feasible and thus, re[skwr-ebgts/]ed. and thus, rejected. >> i do disagree it was dealt with cursory. since it would be an actual reduction to the project, that is something that is an alternative to the project as proposed. so we addressed it in the context of the project alternatives. as mitigation it's not something that matchs what mitigations do, but it does fit as an alternative and that is

how we choose to look at it. in the alternatives, we did consider carefully the impacts of a 351' building and we did conclude that that alternative would contain most of the objectives of the project and noted that the project sponsor noted it would not provide the funding stream for the mexican museum that the project as proposed would. but there was no rejection of the alternative on that basis. >> i guess a question that came up, the project sponsor said potentially this project might not pencil out if it were a shorter project. did you receive financial projections to verify those claims? how were you able to understand whether those contentions were valid? >> that would not be something that we would obtain under the ceqa process. we're providing the information, that would be an issue to be explored in the

context of making approvals in the process. >> there were some comments that you wanted to make around prop k? >> diego sanchez with the planning department staff. i would just like to add that any position that the planning commission would take regarding shadow under prop k295 would occur after the ceqa analysis and documents are done. so at this point, there is no official stance and nothing has been taken to them formally at this point? >> i am particularly interested in how the planning department is going to think about that and depending on what the board decides today, look forward to another conversation. supervisor kim. >> thank you. actually just to piggy-back on in a one piece and i want to go to jessie square in district 6. so the appellants did imply that you said that that alternative was not feasible. is in a something that was

stated in the eir? >> the 351' alternative. >> what the eir states in the context of the 351' alternative, skykomish, excuse me, it would obtain the project objectives and that the sponsor has indicated that the project as it is now envisioned would not be feasible, but under ceqa it does. mitigation of the shadow impact, this is sort of a ceqa technicality, what the eir concluded was that mitigating the shadow impact would not be something feasible and therefore, it was appropriate to address a reduced-height building in the context of an alternative. when you change the project description it's something that is an alternative, rather than a mitigation measure. >> could you talk about that a

little bit more? why planning determined that mitigating is not feasible on all open space? was the statement in reference to all open space or just union square? >> the specific statement being discussed was about the shadow impact on union square, particularly. but a shadow impact is something that is very difficult to mitigate in that the impact that you are recognizing that you are creating a shadow that is impairing the use or enjoyment of a public space. you can't get back that sunlight. so there aren't changes you can make there in how you can go about the project to increase sunlight to

balance out or actually address the physical impact of the shadow. so therefore, you need to actually change the project description with regard to the design of the building, or other aspects of the build, to reduce or avoid that shadow. another approach where it is feasible would be to actually add open space within that same location, but obviously that is something where there are very limited opportunities to do that within san francisco. >> i guess i'm having trouble following that. i didn't want to focus on it, but i'm having troubling focusing on that alternative, because the 351' building would cause no shadowing on union square. so mitigation is feasible. >> there are a [sra-eurts/]

variety of ways for mitigation. application and mitigation measures is one way to reduce impacts. in alternatives, since you couldn't reduce the shadow impact for mitigation measures we looked at reduction of the impact through the alternatives that we need to look at in the eir. so we had a very robust alternatives analyses in the eir, and that was one of them that we choose to explore. >> i actually want to move to kind of other open space, which within ceqa we can analyze. is there a plan or timeline in

terms of what departments we may or may not have maintain and acquire open space that was previously under the redevelopment agency? >> that is not a question that i have the information right at-hand to answer, but we can get back to you around that question. >> i think with prop k, it will be an interesting conversation. obviously some of us weren't expecting the dissolution of the redevelopment agency, but now it has taken place, we have a number of open space under the supervision of the now successor agency and i think there is a question about whether recreation and park is the appropriate place to move this to or not? which would certainly impact prop k analysis. it's a larger conversation, but one i am interested in. i did want to talk about the analysis that the shadow impact

on open space, including jessie square would be less than significant and how it was determined. some of the shadow increases that i saw indicated shadow up to 11:00 a.m. in spring fall and up to noon, possibly 12:30 in the summertime and that is the time of year that people would use jessie square, particularly in the morning. i know yerba buena does programming there in the summertime, as well as there are weddings that take place after mass at st. patrick's church. so i am curious how we did the analysis? because i understand that we did a qualityive analysis in terms of how shadow impacts recreational use? so i am wondering how it was finally determined there was no significant impact on recreational use on jessie square, for example? >> okay. deborah dwyer, planning department. president chiu and members of

the board, the criteria we go back to for the ceqa analysis is whether the shadow would impair the use of these spaces? and although those activities would occur, we did not feel it's in general a passive use plaza. and it would not impair/substantially impair the use of the square. that is the criteria we used >> how do you define that? what is the purpose of studying shadow if we say that shadow doesn't substantially impair of the use of that space? >> i think that for ceqa analysis, we are not looking necessarily at activitis that are very infrequent, you know? people are still able to pass through that square and sit in

that square and reflect and eat their lunch there and i think at the times of day, we did a survey about the use of that square in making this determination and that was our conclusion. >> it seems that the most use is between 11:00 until 2:30 p.m. >> right. >> could you give me an example of when we have determined that shadow impact has substantially impacted the use of open space? >> i personally not aware of that. >> i guess, what i am saying is that i'm asking why do we study shadow impact if we're always going to say it doesn't have an impact on recreational use? i guess i'm asking what is an impact when it does have an impact. clearly i can sit anywhere because the shadow doesn't prevent me from siting or getting married or doesn't prevent me from utilizing open space, but why do we study it if we say it doesn't impact

open space? >> sarah jones acting review officer. in the context, there are a lot of factors that go into whether a shadow will impair the use of the space and obviously to some degree that is a consideration that is going to be different for different individuals. in terms of their own use and enjoyment of a space, some may appreciate -- one of the factors that went into the analysis at jessie square was the fact that yerba buena gardens is a sunny, open space and there were adequate recreational activities within the area, that were sunny. so we were looking at the scale of the impact and types of uses that are being affected. the times of day and times of the year in which shadow would occur?

in the context of the transit district, which was adding a substantial number of shadow from a large number of buildings, that is a situation that we did identify a significant shadow impact and, in fact, for this project, the reason that we found the contribution of the 706 mission project to be significant -- to the shadow on union square to be significant, in combination with the expected development under the transit center plan, there would be an extension of the time of day and time of year in which activity at union square would be shaded. and in addition, those were times of day in which we did see some use -- some active use of union square starting. so we have found in the very recent past shadows to be a

significant impact. but we look at a very wide range of considerations in that decision around shadow impacts. >> so if i determine that it's significant when there is active use and your survey also shows that the square is heavily used by resident shoppers, tourists and workers between 11:00 and 2:30 p.m. and the shadow impact in the summertime not a significant impact? >> good afternoon, supervisor kim. i also wanted to say that besides, we looked at alternatives and then we were looking at alternatives, especially in terms of shadow on jessie square. we found that even a building that was 20' tall would cast a shadow on jessie square.as you may know, this site was earmarked before the existence

of jessie square as a house for the mexican museum and any development that would happen here would cast a shadow. >> i understand that, but it doesn't mean to say that you can't say that it doesn't -- i understand that any type of development would cast a shadow on jessie square. if the impact is significant and itpaques the use of the open space and we should say it's a significant impact and then talk about other mitigation measures, which may not include no development. this is actually one of the rare instances i'm fairly supportive of the project, but i have a lot of concerns about the way we review environmental impact. i guess that we can't prevent the shadow of jessie square. but if there is a significant impact, we should state it and figure out mitigations for the neighborhood on our open space. open space is at a premium in the south of market, as well as

in supervisor chiu's district, 3 and 6. so if we're going to impact our open space usage and we have the least amount of open space per capta per capita, i think what i am trying to get at is that just because we can't mitigate we can't say it's not significant. >> in the opinion, we worked with our specialists and we had consultants who worked with us and when we looked at it in the context of the questions, what is the duration of the shadow? what is the timing? what kind of use that the park has? how would it affect the usability of the park? we found that the lead agency and we have experts that help us figure out our opinions, and

this is an urban open space, where there is dense development around it. given the context of all of this, we came to the conclusion at the project level this was less than significant impact, but when we looked at it in the cumulative context, this was considered as part of the cumulative significant impact. >> would you mind stating that again, i'm sorry? [ laughter ] >> what i was saying was at the project level when we looked at it, we felt, given all of the duration of the shadow, the timing of, it the use of the park, and the way -- the fact that this park is an urban space, which is is densely developed that we felt it was less than significant impact on jessie square. in the cumulative impact, it's

contribution to all the public open spaces in the downtown area and for that we found it to be a significant cumulative impact, is what i was saying >> so going back to what miss jones was talking about, where we found a significant impact of multiple buildings and because it shadowed the parks when they were actively utilized; right? i guess what i'm not understanding that we actively utilize jessie square between 11:00 to 2:30 p.m. and for an hour to 90 minutes of the timeframe, we shadow the park when it's heavily utilized and so why is it different in this case and not the others? is it the type of activities? >> i think yes, one thing we want to clarify, it does relate

to the types of uses. i think one thing that was pointed out in the transit center analysis, there are parks where people do thai chai and other activities and it might be different from someone sitting and having lunch. i want to point out that the graphics in the draft eir that show some shadowing on jessie square, it's the northeast corner and the idea is in that we report the maximum shadow shown and that shadow actually recedes and that time period between 11:00 and 2:30 the shadow is actually moving off the square and 2:30 represents the time there is no shadow. >> i appreciate that delineation or specifying the shadows.

for me i am having a hard time differentiating between thai chai and having lunch. >> i think it wasn't a value judgment among activities. in the case of the transit center district plan shadows those shadows were essentially removing the only remaining sunlight from some of the affected parks at those times of day. that is one very important consideration is are there remaining areas of the park where sunlight is available, which would be the case here with jessie square. >> i would hate to see that the only time that we determine a significant impact on shadow is when we completely shadowed a park, and that is the breaking pointed at which we

define "significant" versus not. >> i certainly would not indicate that at all. that was one of the factors that went into that conclusion in that case. >> i think i have belabored my point and i know supervisor campos wants to speak as well. i think i understand that there is going to be an impact from the project and it's a project that is widely supported in terms of museum and residential growth in the south of market, which i think a lot of us think is a good idea. but if we are not willing to really look at the environmential document and determine when there is an impact and therefore, really study mitigations for the neighborhood, for people who live there, i really fear we create a neighborhood that doesn't have appropriate infrastructure for the residents and workers that come there. so i think my question is less around how do we have a project with shadow impact and

we should say there is one and say it's significant and how we mitigate that not just for the folks that already live there, but future and growing kind of resident populations? >> thank you. supervisor kim, i have one quick comment before supervisor campos. i guess what i have heard from planning today is that there is say suggestion a suggestion that there are some residents that like shaded parks and i have never been asked for shaded parks. and so supervisor kim's comment, the planning department has never, ever recommended that a project that shadows a project ought to be adjusted because of that shadow and to take that into account. before our colleagues got on in

the board in 2010, the planning department and i'm saying this as a point of clarification, the planning department before a number of you in your current positions had proposed changing guidelines and regulations in how you revised the prop k guidelines in a way that would allowed taller buildings without discussion at the board of supervisors. because of that i offered a ballot and we agreed that the planning department would not move forward with those now guidelines and from my perspective, i don't think that has been resolved and i find it a bit confusing and look forward to the conversation about that. with that supervisor campos. >> i guess you know when you are at a board of supervisors if we're talking about the

difference of thai chai and lunch relative to ceqa and the planning code. interesting discussion. i don't have an opinion to that specific issue, but i think the point that needs to be made is that is there are a couple of things that are happening here. one is the analysis around ceqa relative to this specific project. and i'm happy to say a few words about that or just ask a question about that. but i think that independent and separate apart from this project, there is, i think, an overarching question of how the issue of shadows is treated by the planning department and specifically not only the analysis of the ceqa implications of shadows, but enforcing the will of the voters and that is part of the

challenge that many of us are having. is that following the rationale and the analysis that we have seen not only with respect to this project, but others it's hard to imagine a situation that the planning department, based on what we have heard, would really find a problem relative to shadows, whether it's ceqa or prop kk. and i think that is the challenge, and i don't know that it's for us to resolve today. i think that it will require a larger discussion and more clarifying language in the way that prop k is implemented by the planning department. with that said, for me, the question here a legal request of what is the role that the

issue of shadows, which i think is a very important issue, plays in the ceqa analysis, the ceqa deliberation before us? i honestly wish that the issue of shadows irrespective of the ceqa implications had been resolved by now. i really wish that this project had been modified to the point that it's something that can go forward in a manner consistent with prop k. but the question that i have for you is can you explain just a little bit more why it is that for those of us who are concerned about shadows, that analysis should take place not in the context of ceqa, but in the context of the substantive deliberations that would presumably follow? so i am wondering if you could go back to that issue and explain that a little bit more?

>> good morning or good morning, good afternoon supervisor campos, i think the ceqa analysis is providing the substantive information and the information on how to reduce the shadows. it is a topic that is notice not something that was addressed in the state guidelines, but in san francisco, we feel it is necessary to address . if a building is only 40' height is creating a shadow, we look at that shadow. if

it's not protected under proposition k, we stilled consider that shadow. so using the ceqa process to provide that information as is appropriate and consistent with -- i feel the stated purpose of ceqa. the portion of the analysis associated with prop k takes into account policy decisions and one example under proposition k, one consideration is the public benefit provided by the proposed project. whereas ceqa, we are focused on physical environmental impacts. the proposition k analysis provides the opportunity to look at some of those issues beyond that and makes trade-offs as to what issues when you have competing

considerations are most important to consider in the urban environment? >> if i may for purposes of the prop k analysis, can you explain sort of the process that would be followed whereby if there is a desire to amend the project to be compliant with prop k, if you will, to the extent there is a view that it isn't, where does that happen? how does that work? >> i will ask diego sanchez to answer that question. he is the shadow specialist in our department. >> good afternoon, diego sanchez with planning department staff. we would do an analysis, shadow staff would do an analysis under prop k and realize there is x amount of shadow and find that not only to be significant, but also adverse to the impact and we would ask there to be some sort