support of me -- spoke for me and many other residents of telegraph hill. >> thank you. any other public comment? okay, seeing none, then, commissioners, the matter is submitted. >> i actually have a question for mr. brian. is there anything in our charter that provides any guidance as to exercising our administrative decision making authority to take jurisdiction over this type of appeal? >> well, i think this is not deciding on appellate matter, if you will, and there are things in the charter specifically about appellate matters. so, generally it's a majority vote for all other matters and commissioners. this would fall under the majority vote rule. >> so, it's not about

discretion, but there is no guidance -- what factors? >> no, not what factors. when commissioners make decisions generally under the charter, it's majority rule. that's all that you would -- >> okay, thank you. >> anybody care to comment? i'll be bold. >> okay. >> i am inclined to take jurisdiction. there is a certain practical aspect to that, but i also feel that this is established as an adjudicatory body. there are processes in place. from having served on the port commission, my sense when i was on that commission was that that was a policy making body. i do not recall any appeals of any permits coming during the eight years that i was there,

nor do i really believe that we were -- that we did have procedures in place to handle it. in fact, public testimony provided during the port commission is a very different beast than this commission's proceedings. and i feel also that because this was issued by the entertainment commission, the appeal then is to this board. and i'm not so concerned about how or when it was delegated because i think it was done properly. so, i feel that this is the body that should hear the appeal. >> i'm similarly inclined for the reason that i heard from both sides -- i mean, but there is a need for some -- for this, for people to have their positions vetted and i think we

are -- notwithstanding the history of having this -- having our jurisdiction taken away and supported by the port at that time, but i think in this moment today and for the issues that have been presented before us and the fact that we did exist, we have a structure, my inclination is to go ahead and grant jurisdiction as well. >>s a the only commissioner that was here when the previous delegation from the port came, and i recall that quite well, the then director bob davis of the entertainment commission brought it forward. and i reacted perhaps a little too emotionally in that sense because having talked against that particular element of the charter revision when with both

the port commission and the park and rec commission took the appeal process by a different agency or a different body so to speak, from their own commissions, i was not enamored with supporting what i thought was a broken process whereby the decision making body is now also the appeal body. and to me that never made sense. that perhaps it was also related somewhat to the case at that time because it was a very contentious case. in that sense i would agree that the citizens should have an opportunity for appeal and that appeal should be by a body that's ~ that decides the dee

cision. and i would support accepting this delegation. >> if there are no further comments, i'll move to accept jurisdiction on this permit, on this appeal rather. >> and president hwang, if you would consider add tog that motion the ratification of staff action accepting an appeal and placing it on for hearing tonight? >> yes. >> okay, thank you. >> we have a motion, then, from the president to accept the delegation of authority from the port and also to ratify board staff action, accepting appeal 13-0 45 scheduled to item 6 for tonight's meeting agenda. on that motion to accept authority and ratify staff ac, sioner fong?

student: aye >> aye. >> aye. . >> commissioner hurtado? >> aye. >> aye. >> [speaker not understood]. the vote is 5 to 0. the appeal is accepted and appeal 14 05 shall be heard next as item 6. thank you. >> i'd like to take a short break, 10 minutes. >>please stand by; meeting in recess >> welcome back to the may 8, 2013 meeting of the san francisco board of appeals. we are calling item number 6, appeal number 13-0 45, [speaker not understood] open space to the water froth, [speaker not understood] versus the entertainment commission. this has to do with piers 27 and 29 protesting the issuance on april 3rd, 2013 to matt prieshdosiness as

live nation, america's cup pavilion conditional place entertainment permit to hold no more than 30 paid concerts between october 3rd, 2013 and october 19, 2013 at specified. this is on for hearing, and we will begin with the appellant. mr. wagoner, you have 7 minutes. >> thank you, commissioners. my name again is keith wagoner, i'm here with libby wagoner lle representing the appellants recreation and open space for the waterfront [speaker not understood] and fred. we've already discussed the first portion of our brief that addresses jurisdictional issues. and, so, i will just pick up the discussion at page 8 where we raise the substantive issues

that we have with the issuance of the permit. the first issue that we've raise is that the permit does not meet police code requirements. pursuant to the police code, the entertainment commission is not authorized to issue a place of entertainment permit in the following circumstances. first, notwithstanding mitigation, provided under the security plan, the building structure equipment cannot adequately accommodate the type of volume and vehicle and pedestrian traffic. the premises of the proposed operation has adequate safeguard to prevent among other things emissions of noise and glare that would substantially interfere with the public health, safety, and welfare. and the permit has not provided a security plan that adequately addresses safety of persons and property. the important fact to keep in mind -- and we have reviewed the city's and live nation's

briefs in opposition -- essentially the position taken in those briefs is that the c-e-q-a findings that were issued in conjunction with approving the america's cup project are not, well, effectively binding, i guess, on the entertainment commission. but somehow the entertainment commission could find that none of these commission -- or conditions are met despite the fact that a significant and unavoidable impacts were found in particular with regard to traffic and noise, yet this permit was issued by the entertainment commission finding that there would not be any substantial interference with public health, safety, and welfare on these issues. the fundamental problem with the position asserted by the applicants is simply that the city's c-e-q-a administrative procedures make it clear that the city is a single lead

agency. every commission body, decision making body in the city with the exception of what used to be the redevelopment commission that is now gone, is essentially bound by the same set of findings. the entertainment -- and, so, where much emphasis is placed by the city and by the applicants on the fact that the entertainment commission did not make findings of significant impacts and they're saying that affirmative findings are needed in order to deny the permit. the problem here is that those affirmative findings have already been made. they're a matter of the record. and the entertainment commission is in no position to second guess the port and the board in terms of finding that this project will have significant and unavoidable noise and traffic impacts. another argument that has been made by the city is that, while

the e-i-r was looking at the entire america's cup project and all the people involved, and, so, therefore it covers this project and they run the numbers of people that are going to be coming for the overall america's cup. the problem with that theory is that the findings are the findings. this project has been found to have significant noise impacts that are unavoidable. this project has been found to have significant traffic impacts that are unavoidable and these concerts are part of that project. this permit cannot be issued. the permit application or with respect to noise, the noise control plan has a condition that says -- at paragraph 9 -- that live nation will consistently measure the sound of all events with db meter in the facility. [speaker not understood] live

nation personnel will notify mixed [speaker not understood] and the volume will be adjusted to comply with legal limits. the problem here is the condition does not track what san francisco noise ordinance actually says, which is there are very specific noise levels that can be allowed including in people's living rooms. and those noise levels, once again, the port and the board has found are going to be exceeded, that we are exceeding noise level standards. as we conclude in our brief, this measure is too vague to be enforceable or meaningful. the term consistently, as in consistently monitoring sound is undefined. what does that mean? does it mean sound measured over a single noise event? does it mean averaged over a five-minute, a 10-minute, is it a day/night average? what are we talking about? also the term "in the surrounding neighborhood" we're going to measure noise in the surrounding neighborhood.

where is that? and how do you measure whether that's complying with standards? ~ that have been established? so, simply put, these conditions are effectively allow a wide range of interpretation that leave the public and the affected members of the public with no chance of knowing whether they're being protected. ~ -- in term of the c-e-q-a violations, the changes to the project that have occurred are significant and they do require the preparation of a supplemental e-i-r. the argument has been made by the other side the statute of limitations has run on that. all i would say is we disagree on that point. we don't think that these changes were made sufficiently public. finally, as far as c-e-q-a goes, many of the mitigations were not adopted at the time of the original approvals and were deferred. they were put off and are now being adopted. there would have been no way.

even if the statute ran, there would be no practical way somebody could challenge. and, so, for instance, with the noise control plan, it wouldn't have made any sense. we wouldn't have been able to go to corridor. we wouldn't have been able to appeal the noise conditions because they didn't exist until just very recently. the final point i think that i want to make is one that's been raised hire, which is you will hear i think from plenty of people ~ from the neighborhood, this steering committee is not a steering committee. it's a railroading committee. it's a committee that was put together, hand selected and not representative of the members of the community. members of the community have never had a chance to be heard other than for the first time really at this appeal. thank you. >> thank you. >> counselor, i have multiple questions. on the more technical side, the letter from your acoustic ition

talked about the sound criteria levels. did they do any ambient noise measurements? ~ >> there are no noise measurements at this point because there haven't been any concerts. >> no, i'm not talking about that. i'm talking about the ambient noise levels in the area. >> at this point we don't have any information on that. >> and did they review the -- some of the sound mitigations that have been proposed for whether it reduces the sound? >> yes, and that is what is in our brief where they point out that the measures that have been adopted are essentially so vague that they can be interpreted in multiple ways. >> we talked about the general criteria, but what about like the sound absorbing cloth that is being proposed for behind the stage? >> i am not aware of that

specific point being made. what the point is at the point where they are measuring noise in the neighborhood, we don't know where they're measuring, what types of measurements or over what period -- >> thats was clear in your brief. the last question, then, would be almost every decision point here has either been appealed, challenged, or litigated with the exception of one, and that was when the note to file produced by the planning department was issued. is there a reason for that? >> the note to file essentially is a document that was not well publicly -- made publicly available. it was actually quite surprising to us to even learn some of the information that was in there. and as we said, a supplemental e-i-r was required. and, once again, even if those issues came up, and even if a statute of limitations was run, part of the problem is that the

conditions that are being imposed now did not exist at that time. they couldn't have been challenged at that timev because they had not yet been formulated or adopted. ~ at that point >> thank you. >> thank you. we can hear from mr. vettle now. good evening, commissioner. steve vettle on behalf of [speaker not understood] and live nation. couple of points to make. first of all, live entertainment at pier 27-29 has been planned since the inception of the america's cup project. both the board of supervisors and the port commission approved construction and operation of the pavilion in 2012 when they approved the america's cup project. the main argument seems to be

the e-i-r conservatively found noise associated with amplified music and traffic impacts as a whole could be significant even after implementation of mitigation measures. but the city has implicitly made findings set forth in the police code that require rejection of the place of entertainment permit. appellants could be tend the commission had no choice but to deny the permit. but appellants are doing is confusing two different standards. ~ contend the standard of citi qua significance is different than the standard under the police code. ~ c-e-q-a there is nothing in the police code that indicates the entertainment commission can impliedly make findings. just the contrary is true under the police code. the commission must issue a permit unless it expressly makes findings that the standards cannot be met. under section 1060.5 of the police code, the standard for

rejection of a permit for noise is as follows. that the noise would "substantially interfere with the public health, safety, and welfare or the peaceful enjilt of neighboring properties." in contrast under c-e-q-a, the city standard of significance is much more stringent. it is, "noise would result in exposure of persons to a generation of noise levels in excess of standards established in the local general plan a noise ordinance," a much broader standard. so, we would submit that the fact that the city conservatively made findings in the e-i-r that noise could be significant, is not the same finding as what is required under the police code. in addition, the e-i-r established a broad mitigation measure nl2b to reduce these impacts and live nation submitted a detailed noise control plan in exhibit 6 of our brief to comply with that measure. regarding traffic -- merely because the e-i-r conclude

traffic impacts from the america's cup project as a whole do not meet all the city's c-e-q-a standards, again, appellants argue demand that a police permit cannot be issued. the e-i-r analyzed a much larger event of attendees and projected 106 race spectators on weekends, over 16,000 on weekdays. both substantially more than the 9,000 attendees sold out concert. in addition concert goers and race spectators will be arriving and dee forwarding at different times so the 9,000 attendees will not be in addition to any e-i-r figure. appellants also ask you to disapprove this permit because they claim a supplemental e-i-r is required. i would note that the note to file was issued in march of 2011 before the board of supervisors acted and before the port commission acted ~ 2012. the city noted a determination of an e-i-r in april of 2012,

again, after the note to file was published. if the appellants at that time believed that the note to file and the e-i-r was inadequate to analyze the changes in the pavilion, that was the time and under which they needed to file that action. it was a 30-day statute of limitations after a notice of determination was filed. and, again, appellants are simply wrong on the merits of their claim that a supplemental e-i-r is required. the [speaker not understood] is now a 9,000 seat pavilion with a maximum 30 paid could ~ concerts. we are well within the analysis of the e-i-r ~. [speaker not understood]. finally, we do request along with the entertainment commission that the board amend the april 3rd permit to add some additional conditions at the neighborhood steering committee is asking for. those additional conditions include that the pavilion will be removed completely by october 31st, 2013 as one of the speakers requested earlier,

the additional conditions are also that the hours no more than eight concerts go beyond 8:30 at night. and number of additional conditions we would ask that you add. they are contained in exhibit c of our -- exhibit 3 of our brief. that's going to talk a bit now about the specifics of what live nation is doing and the noise and traffic plans i have. ~ annette >> good evening, my name is nat prieshoff for live nation in california. we've been doing business in san francisco for almost 50 years, presenting over a thousand events last year in san francisco alone and about 400,000 people visiting the city for special events and concerts. live nation has a plan for this venue to present world class talent like sting, train, jason more as, the san francisco december to any orchestra and we've put a lot of time into various plans working with the neighborhood and listening to the neighborhood concerns over numerous meetings over the course of the last four months.

we have a communications plan that updates neighbors about when our events are and when -- how many people we expect at those events. we have a security plan with california guard carted security ushers and ticket takers, a cleaning plan that not only cleans the inside of our venue, but adjacent streets to the venue. we have a medical plan with both kaiser permanente and rock medicine. we have worked very closely with the sfmta who will speak a little bit later on this evening as well as sfpd to develop the best possible plan for this specific venue, these specific shows, and this specific neighborhood. we've also developed a noise control plan for this neighborhood and for this specific venue that includes all of the speakers facing away from the neighborhood directed towards the water. live nation has hired charles salter, a very well respected sound acoustic ition to provide sound testing of ambient noise both during the evening and during the daytime before any events take place as well as

the first two events. live nation is also commit today spending over $150,000 on sound acoustic material to prevent sound from going backwards at the venue itself. live nation is committed to not starting work before 7:00 a.m. and we have also indicated that we will work with the neighborhood on curfews over the last number of meetings we moved from our original entertainment commission permit of 11:30 and 11:00 p.m. can you remember fuse. ~ curfews. we moved it to 11:00 p.m. [speaker not understood]. thank you for your time. >> we'll hear from the entertainment commission, ms. cain. >> good evening, jocelyn cain, entertainment commission. just a little tiny history about the entertainment commission.

we were created in 2003 after a charter amendment. there are 7 commissioners that represent all the stakeholders, impacting entertainment and nighttime business. even include neighbors, law enforcement public health planning and the industry itself. staff is currently 4,000 people. we oversee a thousand fixed place permits including places of entertainment, late night food establishments, bars, we even regulate a few dance halls that are still around. we talk a lot about the port delegated authority to the entertainment commission and that was we believe based on our expertise and our public process that we have been doing for 10 years. the commissioners created a focus specifically on issues in entertainment. that's why we're good at what we do. the port beginning in 2004 has relied on the entertainment commission for its expertise and our robust public process that includes public notice. a duly noticed hearing at the

hall and [speaker not understood] appeals for this body as well as enforcement powers that include the ability to suspend and revoke permits. you are aware of the timeline of the permit in front of you. so, i won't go over that. we believe that the commission properly issued the permit. and again, just to reiterate, the commission operates under the police code section 1060.5 which instructs us that we are to grant, we shall grant unless these are permits that protect the first amendment protected activity of free speech. through the robust process, many steps are in place to protect the public welfare related to security, noise, and health concerns that may arise from entertainment. as was stated, applicants provided substantial information by the application itself, security plan, noise control plan, the people plan and the public outreach that i

hope we'll have a chance to talk about some more. there was no basis by my commission found for denial. our expertise is clear. we work in close collaboration with planning, fire, health, police department, the building department, all of those he that relate to the port property certainly, and the permit that we're calling a permit was actually a conditional grant that was issued by our department. conditional grants are not operating permits. they're grants such that the applicant can move forward with the balance of expending money to finish the project. and until we get completed sign offs and final reviews and okays from all of those departments, we will not issue a time permit and that's obviously to protect the public interest. ~ final permit in short, the entertainment commission is asking that the board of appeals uphold the permit issued on april 3rd and that the board add the addition

by the entertainment commission on april 16th related to curfews, removal of structures at the site, and concert capacity and total number of shows. begin, in the brief it was stated that ~ we were initially agendized these amendments to address neighbor concerns that were brought up after our first hearing. and then when the appeal was submitted to you, we no longer had any jurisdiction to add amendments. ~ again so, i was instructed to come here and ask you to consider those amendments. so, there are a whole bunch of people here from the city including joy navrette, adam, susan from the port as you know, a host of city attorneys including [speaker not understood] to answer questions about our process. and, again, public outreach that i had hoped live nation would have some more time to talk about, but they are here

to talk about any questions as well as we know [speaker not understood] from mta on the traffic and parking issues and officer cleary -- i'm sorry, captain cleary from the police department who is vital in this process with respect to keeping patrons safe and managing any issues that arise from ticket sales and people moving around [speaker not understood]. thanks. >> which person is going to address the public outreach, the neighborhood outreach? >> well, i think the most qualified is mr. prieshoff from live nation because he was at every single meeting. >> okay. >> do you want that to happen now? >> do you have a question? >> yes, i'd like to hear a little bit more about that. we've heard from the appellants, it was a hand selected group and others

calling it an ad hoc committee. >> so, on january 22nd, live nation and the america's cup announced the partnership to work together on the america's cup pavilion. before the announcement we reached out to telegraph hill dwellers association, john ballinger specifically to discuss it before the announcement went out and they agreed to set up a number of follow-up meetings. starting on february 12th, we met with the telegraph hill dwellers association. we provided open site tours on february 20th and 22nd of the pier 27-29 project. we had another follow-up meeting on february 26th at pier 23. on march 1st, we met with a group of neighbors at their homes and it was a collection of various neighbors. we filed -- >> [speaker not understood]. >> we didn't select anybody at that time. we were listening to everybody's concern. the neighborhood steering committee is a group of individuals that live