my comments are limited. my involvement has been short. i stand by to answer any questions you may have. >> are you saying the building would absorb the noise from the street, protect the marsh from the noise? >> sound doesn't like to go around corners. imagine the freeway barriers for traffic to the homes, this is a huge barrier. the sound has to go up and over. >> the sound from hill street because you said valencia street. >> it's the sound of hill street because it's going to block the sound from hill street and the path from valencia to the east. it will block some of that as well. if you were on valencia street and you look from the east to the

marsh theatre you can see the wall of the mark theatre and see the window in the upper level from valencia street from the path. the new proposed building will block that site and provide an acoustical noise barrier. >> did you review the pal letty report? >> yes i did. >> it came on after that. >> i have only been involved in the past month or so. and i found the pal letty report to be objective and pointed out some of the inherent weaknesses in the mark theatre and some suggestions as to what could be done to improve it. thank you. >> okay. well i would like to

follow that up and what has done to protect this project from the marsh theatre. so in the past, prior to the latest ceqa appeal, the sponsor did higher and acoustic cult consultant and they also took other efforts. they eliminated the roof depth feature out of response of noise. they limited construction hours and you may have seen in the approval to address the theatres schedule and incorporated in the design to design between the adjacent buildings. i'm happy to go what some of those are as well as well as the items raised by the marsh earlier. the project sponsor has agreed to the items shown on the left-hand column. thank you very much. >> what about the right hand

column? >> the right hand columns have been propose fwied marsh but not agreed to buy the -- by the parties. >> so rejected ? >> yes. >> can you address the mandated community liaison and when did that come on? >> mark, the project sponsor is acting as the community liaison. we've been informed that he's the community liaison. the building project has been issued -- has not been issued. >> when is the liaison

appointed? >> when the building permit has been issued. >> we have a community liaison in place. >> when was the permit issued? >> july 17th. >> has that community liaison been in place since that time? >> yes. informed the day afterwards. >> we heard the project liaison is not a part of it. >> it appears the liaison is the department itself. >> it's the employee, not the owner. >> mr. tieg?

>> good evening, commissioners, corey tieg. i don't intend to use all 28 minutes. i will try not to repeat anything. just again the project is a code complying project. it did not require any entitlement or variances. however there was a discretionary review filed at the planning commission. they did take discretionary review and adopt the project as proposed with specific conditions which i would like to paraphrase at this point and that was on september 26, 2012, condition one was to refine bay windows. i believe that has been done. condition two, with the liaison condition before

the permit of issuance. i don't know the exact date when the community liaison information was given to the zone is administrator. however in my experience, the community liaison is often the developer because at this point they are usually the person who is most knowledgeable about the project and is who the community liaison was the third party would have to ultimately go and speak with and specific requirements that cannot be the developer or must be a mutual third party or anything like that. it maybe on ken teshs projects it might not be a good idea for the developer and which has been discussed already. the fourth condition was limiting the hours of construction that they could have, but the discretionary

review did limit the hours of construction from 7:00 a.m. to 6:00 a.m. monday through friday with no construction activities to occur on sunday. no. 5 was to encourage outreach with the marsh theatre specifically to try to work with them to address issues associated with drainage and light and sound. and finally to encourage zoning and the commission encourages the department to work with the staff and still obtain the number of drawing units of the project. that's what was approved at the planning. as you are aware, the ceqa document of this project was also an appealed to the

planning commission. the planning commission did uphold that. the negative declaration was also an appealed to the board of supervisors and that was upheld this year and that leaves us to where we are. regarding the height incompatibility of the project, as you know eastern neighborhoods planning and rezoning process was a very long process along the coordination with many stake holders and 50 feet it was zoned up to 55 feet which was ground floors now that we require that. it was 14 feet. it allowed them to have 5 stories. also specifically the mission area plan which was adopted into general plan to help guide growth and development in this area,

specifically policy 3.11 states to adopt heights that are appropriate for the missions located in the city, the prevailing street and block pattern and while preserving the character and additionally policies 3.14 height should reflect the importance of the patterns such as mission and valencia street to exemplifies much of the areas. through this process, what happened was this parcel and much of valencia street was raised from 50-55 feet. some of the interior residential areas were left at 40 feet like hill street adjacent here and some 45 feet in some areas. but just a short ways away on valencia street

between 20-21st street on the west side that was 50 feet high. i don't know why but i only bring that up to say that the height that were zoned for this area were done so with specific directions to make sure that they were compatible and done in a way that is consistent with what the plan was trying to achieve. regarding the actual height of the proposed building, the measured height. there was some discussion about what is the actual height of the building. this is confusing because there is some topography involved. the measured height of the code of the project was taken off valencia street. the measured height goes to the roof line and that is 55 feet. you can have other building components that go above that height. most typically that's up in such in this case, mechanical equipment and stair house and

those are limited in their size and how high in their district and this project complies. this project again slopes gently uphill street and alternative means a height in this process from hill street which would actually have resulted in a higher over all height of the building. the cause of the gentle upslope because it was measured from valencia street it was a smaller building from proposing what could have otherwise been. regarding departmental project review. the hazard zone. they weren't required to do that. i'm not aware if that requirement was in place at the time that this permit was initially filed. i would to have do more research on that because that was the first time i heard that issue

come up. also there have been examples of projects that do separate project reviews and dbi and we coordinate outside of one meeting altogether and serve the same purpose and they generally meet that requirement and are not requirement to follow another fee and have another meeting that has already been covered. i don't know if that was done for this case, but i can do research on that and get back to you. regarding the affordable housing issue. the project sponsor said what the issue was. i won't go into that detail. i will be available for any questions on that issue. regarding the noise, i simply want to point out what was already pointed out was that the shared property line with the marsh, all that mrooen

property line is taken up by the circulation space and elevators and the only one is the second bedroom where the noise would be created inside the units and where the property line is located and shared with the marsh. finally the proposed conditions that were outlined and some that were not agreed to, generally speaking, the proposed condition 1-4. the department should not have a problem with any of those. condition no. 5, the idea is not an issue but the fact that it states any noise emanate federal -- from

this project maybe difficult to implement. i would have a little bit of concern about the wording of that condition. what is -- how do you define certain terms within this requirement. that is one concern i would raise. the proposed condition no. 6 and 7. they are springing conditions that rely on potential legislation that may or may not ever happen and we under unknown parameters is not a precedent to have springing conditions based on what we know that legislation is moving forward. however to add these conditions to the approval when they have no effect and would only have effect if some future legislation that has not been proposed yet. it not something that we would typically want to have on conditions of approval because it's something with

that follows on our domain. any future regulations that would be required on this project. we feel those issues would be better dealt with in that legislation and not conditions for approval for this project. that concludes my presentation. i'm available for questions that you may have. >> you guys are deferring to each other to go first. let me ask a quick question on one of the second to the last box on the right hand side. second to the last row, bars prohibited and bars for the planning code prohibited at the project site. the question is what if you know is the intent of the

project sponsor in terms of using that commercial space? has it been raised an suggest that bar or entertainment? >> i can let them speak to that. the plans are approved as a restaurant. >> okay. restaurant, bar. what if this at all are there any restriction for this type of use in that particular location? >> yes. bars first of all i believe within the valencia street they require conditional use authorization. on top of that this falls within the mission alcoholic beverage special use district which strictly limits the creation of in you bars and alcohol bars establishment other than bona fide eating establishment. the only way that bar could be established if an abc license is transferred from the district and it would require a

conditional use operation. >> is there one in existence? >> if they have an abc license it would be a type that is for restaurant for bonafide eating place and not a bar. >> okay. thank you. questions regarding the condition. under the community liaison condition it says they shall report to the da should conditions not be resolved. has that taken place to your knowledge? >> to my knowledge no. because the project has not moved forward. the issues are being worked out through the appeals. the community liaison is not kind of unique to this approval. it's the standard commission we do for the

planning commission. it's usually happened between the approval and when the project is actually being developed. dwen they are proposing a condition to having a foreman on site to speak to construction issues. without that approval, the liaison serves as that role. it's the point of contact that if anybody contact our department, we can say this is the point for that project. this is person to contact and they can communicate back to us if there are any issues unresolved that need to be discussed. >> second question on the construction hours, how stringent would you say these limitations are for this project? >> that falls a little bit outside of the realm of the planning department. at least monday through friday you can go 7:00 a.m. to 8:00 p.m. seven

7 days a week. mondays and fridays their losing two hours and2 hours and sundays losing 8 hours. >> the appellant have asked for more restrictive hours. have you seen other instances of 7-4:00 p.m., 7-12:00 p.m. hours. >> i have not seen those types of hours. i have seen restrictions of hours of construction. >> would you say this is typical the one put in the condition? >> the one the planning commission put in. i wouldn't say it's typical. it's always a case by case who the kind of

sensitive neighbor or community has an interest. if an issue is nighttime. they want you to set it down from 8:00 p.m. to 5:00 p.m.. if it's daytime activity they want to you start later. it case by case. >> okay. lastly, the encouragement of the refining the building mass along the street, what does the department imagine when they encourage an applicant to make changes, a, and b the comment that they would require some of the usage of the rear yard so it would have a negative impact there. >> so they attack talc about it in two separate ways. the planning commission that is authority to simply require it. this is when they said this is 1 story too tall or you need to literally set it back on hill street exactly this way. the

discretionary review authority gave them the ability to do that. they chose not to do that. i can't speak for them. obviously as to why they chose to go this route is obviously much softer language and it encourages the sponsor to work with staff and to achieve a little bit more stepping while also keeping the same number of dwelling units which may not be the an easy thing to accomplish. this is not uncommon on projects when they take discretionary review. they make those kinds of changes. the other review about the additional proposal, it's my understanding that the original proposal did not meet the minimum rear yard requirement but the building was articulated a little bit more. i don't believe it really had much less of a mass along hill street. i think as the project sponsor mentioned, the neighbors and other parties

weren't really excited about that plan either. >> so, would you then sort of suggest that when they are encouraging it that there is the understanding that if it's required that you might impact the number of units to meet that objective? does that question make sense? >> the planning commission could have said from purely from a math as scale perspective, you need to change the building in this very specific way and however you fit in whatever number of units you do, so be it. you lose some units. they could have done that. in this situation, i think again, i cannot speak for them, but this is kind offen encapsulates this project. you have competing goals. i think they wanted to somehow address the issue of hill street and the potential for some additional stepping beyond the rear yard that's about 21-22

feet along hill street there without actually requiring this em to do so. >> okay, thank you. >> okay. mr. tieg, my question is regards to the affordable housing. so, can you maybe educate so there is x amounts of units, a percentage that has to be below market rate, affordable housing. is that mandatory for every new construction. >> this is kind of a bigger issue. we have affordable housing program. there used to be a program required as a first option to use your units on-site and there was off sight or paying unlucy instead. due to recent years we had to flip that legally to make it a fee first program so that the first

option that a developer has is to pay the affordable housing fee. then if they meet certain legal criteria, they can if they choose provide those unit on-site or provide them off sight for another development. you have the ability to make that selection. even though we want to make that ability during the approval process we could not legally change how they satisfy that legal requirement. it's having it approved with the finding with intend to find the units on-site and later having the process pay the fee because that is the process we have. >> it's mandatory that we have on-site or off sight rate? >> yes. isn'tly without getting too complicated. generally there is three options. you can pay the fee, provide it on-site

or off sight within another development. >> is there an option to opt out of that program or is there a penalty phase. >> you cannot opt out of that. >> so what happens if a developer says i no longer want to supply x amount of units. is there a penalty? >> yes. there is a penalty. it depends when this happens. they do not provide it until occupancy. it depends how you are choosing to meet your inclusionary. if you are required to pay in lieu fee you meet that requirement. >> the reason i brought it up because someone mentioned the developer would pay a penalty

rather than to keep the people. >> i think what they were referencing is not paying the penalty but paying then lucy. i believe those set of, they are set to go up pretty soon. but specifically if you do make that change at a certain time down the road there are penalties involved with switching as well. you can't say we are not going to comply and we'll just pay the penalties and be done with that. >> okay. that was my question. thank you. >> okay. thank you. mr. duffy. >> good evening commissioners, on this issue from the building department point of view we don't have a lot yet other than the site permit was issue and

the demolition permit was issued. we don't have any structural drawings or architectural and mechanical or sprinklers with us yet. i'm glad to see the work hours are part of the discussion here. currently at the dbi we've been getting a lot of complaints from all sorts of neighborhoods because things are so busy particularly downtown. so it's great to see there is some discussion on that and i would encourage both to figure that out because when the project starts whether a delivery comes early, delivers come at 5:00 a.m. and they make noise but the construction doesn't start until 7:00 a.m.. so we are not having back up alarms with someone delivering. this is an

issue that is dear to my heart because it takes up a lot of time from my work. whatever they can do. i see there are performances around the theatre. they have to get the noise issue with the construction hours. as you heard they can work seven 7 days a week. but it's not a good idea to do that. obviously people get annoyed. sometimes we get applications for night noise permits from contractors. sometimes that's necessary if they need to block a street. they don't want to do it in the middle of the day. sometimes they are forced to work those hours. that's dependent on the community prior to that start. i'm available for questions.

>> okay. we are going to move into the public comment hearing of this portion. can i see a show of hands how many people plan to speak on this item? we are going to limit your comment to 2 minutes because of the number of people. >> this is what i would like to see happen. i would like to ask for the help and preparation of the board that if you have not filled out a speaker card that you do so before you come up to speak or after. do not hand it to him in advance. typically what we would like people to do is lineup on your right side, that side of the podium so we can move along in a sufficient manner. i would ask people to do that. there are people outside of the room who might want to come in and speak and when you are done speaking if you can take a seat, that would be great. if you can go to the overflow room that would be

helpful for people here to speak. while you are organizing yourself i'm going to ask > we of appeals meeting of december 11, 2013. we are discussing site plan approval: the applicant requests approval of a site plan approval for the property known by legal description as industrial park west, block a, tract 27-a1. item 5 -- abcd. the comments will not be included as evidence and will not appear in this record. >> sue hesser. i'm separate from the marsh. 246 rich street. cash you -- out. i was