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 really adequately and completely reviewed what the impacts of all of this development has been on the neighborhood? i am curious. i know you have been really

involved in neighborhood planning for the last 20 years and the last time the city reviewed the cumulative pedestrian traffic issues as you pointed out was in 1992 yerba buena eir. so from your perspective, what do you feel has happened or can you outline what you feel has happened over the last 20 years that has impacted pedestrian traffic and safety in the neighborhood? >> thank you, supervisor. the last time the city redevelopment agency looked at a list of actual projects and tried to estimate their impacts, was in 1992 and left out and could not have foreseen many of the huge projects that have been built or now pending. it did conceptually envision a new museum of modern art, but certainly not the popular one built and the expansion approved a few months ago that would double its size again.

it did not envision the construction of the moscone center and it's impact. it did not envision the westfield sister that was proposed and developed many years later. it did envision a meterone project. it did notice envision adding a subway station in the districting that would concentrate pedestrian travel in a different way than before. there is this long list and of course, hotels added, museums added, a great many other projects as well in the immediate area. all of these things were left out. i shouldn't say "left out, but but had never been looked at there the detail and quantitified with the cumulative total. you cannot find a cumulative total of pedestrians in the district anywhere, just this model that treats it like any

other parts of downtown. pardon me, i forget to mention the upcoming moscone expansion, which is yet one more. >> i noticed that the baseline that we used in our eir looked at certain hours, a.m. pm and peak hours and did notice exam weekend hours as far as i could see in the document. and i will ask this of planning. given the fact that this neighborhood is not just a monday-through friday neighborhood with the target meterone and weekend spaces? >> thank you, supervisor. because of the different events and festivals that are very different from each other. there are times peak impacts are differing tremendously.

sometime it's midday. some are weekend events. assuming that the p.m. rush hour time is when the bigest impact happens is certainly wrong. and developing a mitigation plan where where the park system, that the ways of getting around can actually handle that peak load. we don't have it today. there is not the capacity of the sidewalks today to handle the peak loads. we have crush conditions that our seniors simply cannot leave their homes. >> and my last question and i am not sure if this is a we did for you or miss brandt-hawley,

but i'm curious maybe in terms of the current levels of what we see, versus projects in the area. i am just wondering, first of all, your thoughts on that, on that kind of interpretation ever state law that we have here locally. and in terms of municipalities. >> thank you, supervisor. >> well, i don't have another municipality examples to give you. mr. lippe may have that answer and deal with those. i deal with historic preservation, which is an

individual impact. but i think that ceqa as a general concept and a benefit to the environment requires that the methodology be used in a way that truly looks at the relevant impacts and ways to mitigate them. what is consistent in the case law, whether it's about an airport expansion or gravel mining or any other kind of project, you need to use a methodology that will, in fact, assess the impacts and assess and allow the proper mitigation to occur. so any kind of choice, whether it's a list or plan or the way that whatever is chosen needs to provide a good, safe basis for environmental analysis. when you have a unique situation, what does happen statewide is that the courts find that you need to fairly look at the environmental issues in away that fits the process and there is no

ironclad rule about cumulative impacts. and it's a confusing area with a considerable cumulatively considerable -- it's hard to say and certainly not an easy thing to put in practice. so when you look at the commonsense approach of what works, i think courts ea spooned responds to that. i'm sorry it's not as clear as answer for you supervisor. >> from your perspective, a question that i asked mr. eberling. the recreation-based area and if you could speak to that in terms of your thinking, the completeness of our eir document. >> downtown you do see monday

to friday activity for the most part there are offices and businesses and can't be evaluated in the same way. normally it would be fair to look at week day analysis, where the peaks are, rush hours and coming and goes to the offices in downtown san francisco. so this doesn't fit into the standard model and so not including weekends when, in fact, this is an area, there are residents that live there all the time as you know, but the peak traffic loads often occur on weekends because that is when a lot of people are free to go to the museums and recreation areas that are offered. so that prevents the eir from providing a good-faith effort at full disclosure. >> thank you. >> thank you, supervisor. >> supervisor kim, any other questions to the appellants? at this time, why don't we hear from members of the public who wish to speak in support of the

project appellant. each member will have up to two minutes and if you could line up on the chambers facing up and why don't we hear from our first speaker. >> good afternoon, president chiu, and members of the board. my name is sabrina, as a member of the future generation of leaders of our community, i am here to speak on behalf of our support for the 706 mission street mexican museum project. >> are you speaking in support of the project or in opposition to the project? >> support. >> okay. we are hearing from the members of the public that are opposing us granting the environmental impact report. there will be a time for supporters of the project to speak later on. let me ask if there are members of the public that wish to speak on behalf of the appellants, who do not want us to finalize the final

environmental impact report today. if we could hear from the next speaker. >> president chiu, i'm sorry. >> okay. again, if there are members of the public who wish to speak on behalf of the appellants. >> yes, my name is diane and i am a senior citizen. >> if you could please bring the mic a little closer to you. >> i live in the yerba buena area. the public safety is my concern. they have a lot of cars turning, even though the signs are posted, no signing on red, they are still turning on red. three times in last two week issues came close to being hit by a car. and that is not fair. i know it's not your responsibility to go after the people illegally turning, but the pedestrian safety in our area is not working.

and when you have all of these big conventions, and the people block the sidewalks, nobody can walk down the sidewalks. and there is no way to get around it. you need to do something about it. public safety is important, especially for the seniors. thank you. >> thank you, next speaker. >> eliana bloomberg, i am 80 years old and i live next door to the moscone center, for 14 years, when i first moved in, it was a vacant lot. today the yerba buena census data are 3252 people who are 55 years and older living in the south of market. this is 32% of the population here. the yerba buena seniors need

pedestrian safety now, today. the years ever promises are not enough. we are here again and again. our sidewalks are being narrowed down. there are more restaurants and restaurants, coffee shops, target, everybody is here for the moscone conventioneers. bike riders on the sake are everywhere, everyday. traffic is terrible. you can see very common seniors are knocked down and fall on the sidewalk. this is very common. please build more crosswalks. please fix the problem. please enforce the law. please finish the job now. you will see everyday mothers pushing their strollers, one hand holding their child, crossing the street to the moscone towers there.