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 of sculpting with the building and some other changes and revisions to the project. while significant because is there is an additional of net new shadow on the park, it

would not have an adverse impact given the qualitative standards that the governing memos for prop k provides. >> who has the final say as to any substantive changes that happen at that point? >> that would be the department, would make a recommendation to the planning commission as well potentially to the rec and park commission about whether the project as proposed has an adverse impact on a particular protected practice. >> and does the board of supervisors have a role as well related to that? >> good afternoon, in the case of this project, there is a height rezoning required. so for the purposes of this project, the board of supervisors would have a role in that. >> thank you. supervisor yee.

>> actually, i think supervisor campos' line of questioning may have answered. my experience with these issues are fairly new, but i recall from the community's point of view, there was a project a couple of decades ago, actually; that had shadow affects on portions of the square and that was the federal bank building. i don't know when we were able to push back on the original design, but i do recall at some point the community was able to get them -- what do you call when you ask them to scale

back, to reduce the impact on shadows. so there seems there are ways to do that, whether you lower the height, as suggested by the option. i guess it's a little disappointing that one would have to go through this two-step process to get to that and i'm wondering if some of you smarter people in this chamber can have legislation to maybe put stronger language in having this piece of it, the shadow effect be part -- maybe a bigger part of what is looked at in the eir. but i think your line of questioning has clarified that. there are opportunities for us , if the shadow issue doesn't get addressed, that we will have an opportunity to question

that. >> go do you have a response to that? >> i did, i wanted to emphasize the point that we addressed briefly earlier, which is that in for this particular project's eir, we had alternatives to reduce significant impacts to the project, but we felt it would be important to identify the height of the building at which a shadow impact on union square would be avoided and that is the reason that we included that 351' building. we were trying to provide information that would feed into this prop k and subsequent approval processes. >> thank you. and just one final comment on that issue, and again, for colleagues' education, for those not as familiar as prop k, passed in the mid-1980sses

laid out certain parks in the neighborhoods that have very limited open space and said we need to protect these parks particularly in regard to shadow and i think supervisor yee was referring to the discussions around proposition k to make sure that the parks were protected and what you are hearing from us today, in recent years that has been less of an emphasis for the planning department and i think many of us on the board are interested in that and i think certainly it will become more relevant in terms of project approval. i know we started our questioning before the full presentation was done from planning and i wanted to give back and give remaining times for the planning department. >> mr. president, 3 minutes

and 58 seconds left. >> back to planning. >> the appellants have suggested an alternative setback 40' from jessie square and this alternative was not required to be analyzed since it would not eliminate the considerable contribution to cumulative shadow impact and others would have adversely affected the aaronson building, requiring more fabric to be removed from that structure. the appellant states that transportation analysis was flawed and these issues are the same issues brought up in the nelson/nygaard document. and those substantial evidence has been provided by appellants to show that the feir

responsesed. the pedestrian analysis did not identify significant impacts in this project vicinity. and with upto 215 residential units, the mexico museum and ground floor retail space -- [speaker not understood] i also want to address the letter that was received this afternoon from appellant's

todco and yerba buena and addition the issues that we have heard from the appellant and public today about the poor existing pedestrian conditions. those are encapsulated within the base line for this project and form the pedestrian setting for the analysis of this project. under ceqa the question is whether the project would create significant pedestrian analysis and again, the department does not believe that the project would contribute to cumulative impact and we have not seen substantial evidence that this significant cumlative pedestrian impact exists. the department uses existing conditions for the area, to

present the analysis results clearly. and so regarding -- we wouldn't be using the convention or an event day, just as we wouldn't be using conditions that are not typical because we don't find that this would represent -- that this would fairly characterize the project's impacts or its contributions. we respectfully request that the eir be upheld, because we do believe that the conclusions are adequate and accurate and that we have met the requirements of ceqa, the ceqa guidelines and chapter 31 of the administrative code. thank you. >> thank you. supervisor kim. >> thank you. this is actually the section of the eir that i was most

frustrated by and so actually i wanted to have a better understanding of how planning defined "cumulative impact study." so ceqa does require cumulative impact study and i know that planning interprets that in a certain way. and we choose to use the area plan lens and i was hoping that you could talk about that a little bit more. >> in general the department used a plan-based approach, but includes gross projections in the assumptions that are used. where we feel that there would be some localized effects, we do look at what is going on in the area and we do discuss that. we did discuss what is going on in the vicinity of the projects.

>> what did you discuss? >> it depends on the topic. >> for pedestrian safety. >> the analysis did look at the sf moma expansion is occurring >> did you look at the new meterone project? >> i'm sorry >> it's the same building, but it's been reconceptualized and it's great and, by the way, it looks wonderful and it's attracting a new volume of

pedestrians, particularly with it being the only target in the city. and also the westfield mall. >> yes. i am going to ask that greg reiskin, the transportation planner address this. >> good evening, members of the board, greg reiskin, transportation planner for the project and we did look for a qualitative assessment. so we did look at the meterone, because when we established preparation for this project, the meterone was existing at that time. the target was not in there at that time. so that was not part of the cumulatives because it wasn't in the nop right?