statute come down. this is the only thing holding it back right now. you have a landmark decision. you can join the rest of the nation with moving forward to be progressive and progress of looking at what statutes are really racist represent genocide, sla slavery. is this what we have? that statute doesn't represent that. it is going to be put in storage. most likely moved to a museum where people have the thoughts about genocide. think about the first people of the land. you are sitting on and you benefit from. thank you. >> thank you. any other public comment? seeing none we will move to rebuttle. mr. smith. three minutes please. >> thank you. as i tried to be clear in my

brief, my point in this appeal is not to antagonize any group of people or one philosophy. i am trying to see that the rule of law is apply here. i am very distressed that it has not been applied thus far. the comments we heard recently i don't know the woman's name with the young child. it was political. they are political. everyone is racist that supports it. i can stand up here all day and say i am not racist. according to who because of rand i inherited the racist genes. whatever. i can argue that the carols were native-americans. but that doesn't change

anything. we are not talking politics or ethics. we are talking fundamental principles. do what is right. we do not burn books, we do not destroy art. it is just inconceivable that a city that prides itself on being multicultural, multinational would destroy art. there is no question that is what they are doing. when you take one piece of art and take the lips off the mona lisa. it is ridiculous. the arguments about the civil code section doesn't apply here the way they argue it. the 50 year limit only applies as to rights and duties of an artist. what we are talking about a fun did mental right that says we do not destroy or alter art.

you do not destroy or alter art. the california legislature has spoken. there was never any secret. there is no secret documents presented to the commission below even though they rubber stamp it. you can look through the whole packet. there is no secret investigation. as a matter of law, this is not an exempt project. this is in the historic district. the law is key as a argued in the brief. it is arguable. if this goes to the next stage, we will be back here dealing with the eir at the very least. i respectfully call upon you to exercise your dinovo review of this matter and i know it is not easy to take the position on a controversial issue, but there

are some things that are a matter of principal. that is the only rope i am here. thank you very much. >> we will hear from his cummings from the art commission. >> thank you, commissioners. the san francisco arts commission in response to significant public reaction over an extended period of time and after completing a public process voted to approve the removal from public view, not destroy, but remove early days, which is something we do as a function of managing the disposition of the collection. the arts commission is authorized by the city charter and the san francisco administrative code to oversee the disposition of the art collection. acting on behalf of the city and county. the preservation act does not

apply to the early days. we reiterate we request that the appellants appeal be denied. thank you. >> i am looking at the conditions that is in the statute. i am going to read the line. public you know it by heart. the public may not. condition 7.3.3. work of art may be considered for removal if one or more of the following conditions apply. you are stating there is a list of 20 items. you are stating significant adverse public reaction over an extended period of time 5 years or more. can you characterize adverse public reaction?

how do you measure that? was there a vote of 800,000 people in san francisco? what is significant public adverse reaction? >> we talk about the massive or large administrative review that occurred in 1990, 1996 that came about as function of moving the monument which is when the very public recorded argument for removal came about. we have documentation to that in the minutes of the arts commission and public and library commission and public comments with that. to the extent the process under taken since august of last year at three separate public meetings, public comment we received on record at those

meetings and that is submitted to the commission to that extent this is what the commissioners felt has substantiated the adverse public reaction. >> i will take you to task. i have read everything. you use the word massive. we have a president who likes to yumassive, -- use the word massive, horrible. there was public adverse in 1996. it barely filled a comic book. before you yuma use the word ma. was it five people, 10, 100 people? we live with 800,000 people in san francisco. how many people is massive? how many people is significantly

adverse? we have a significant and i will put the metric on that. significant pinto make here tonight. i want to make sure when we make that opinion that it characterizes the opinion of 800,000 people. what is the metric for significantly adverse numbers? >> that is your question? >> well, i will do my best. to the extent that and my recollection of the meeting that we had as a full arts commissin in october. somewhere between 28 public comments and 26 of those were in favor of bringing down the monument and two were against. subsequently, at the other public meetings and i can't speak off hand at the hpc at the

minutes. to the extent the comments out weighed to take down the piece have outweighed the comments to leave it up, it is within the public record, you know. perhaps massive was not the correct choice of words. when i said it i did make the comment that i should have chosen a different word. to the extent my experience as the akai for this -- arc h.i.v. ist. there are about 4,000. the files are rich and dense. they were consolidated for the reports for this process. you know, this has a rich history within the city and these types of requests don't come up for us very often.

the extent it is more significant than the other works, yes. do i have data to present? no. i did receive a note that the online petition has over 1,000 signatures. to that extent, yes. >> thank you. >> i would like to hear from the planning department. three minutes please. >> thank you. just briefly. just to clarify there is a bigger issue regarding whether or not the city should choose to remove the sculpture or not. the only issue under consideration tonight is whether or not the historic preservation commission acted appropriately in granting the certificate required for that. there are a number of legal questions raised.

i am not an attorney but the city attorney's office was involved with this project every step of the way. the certificate and found no legal conflict with city, state or federal law with the actions of the historic preservation commission. to that point and the law it may be a nuance. there is no proposal to alter the piece of art. the city is choosing not to display it publicly. it will be well-preserved in fine arts storage. i am available for any questions you may have. >> any questions? okay.

this matter is submitted. >> who would like to start? >> i might as well sacrifice myself to the wolves. my family has lived in this community for 75 years there is an art gallery in the san francisco museum of art with their maim on it. my mother chaired the art commission. they serve on the community of marconcern art. -- modern art. to say i am dedicated to the arts would be an understatement. i read in the exhibit is a

perfect view by former mayor brown. the art commission role is not to rewrite history but to foster communication, understanding and mutual appreciation of all cultures. he asked the commissioners to create an environment that would allow different cultures to live, flourish and enjoy a high-quality of life unmatched by any other urban center which interprets me that freedom of expression is the key when it comes to the display of art. with regard to this and when i see a piece of artery moved i think of the gorge siegel culture on lands end. i remember when that was put in

it was 50 years ago. it is one of the horrific sculptures one can imagine. it depicts a person in a concentration catch of jewish origin being tortured. some might say that should be taken down because it is so horrific that it depicts the jewish people in that situation. some might say that it stimulates thought and is a reminder of history that should never go without it. i would think that the sculpture we are talking about would be in the same class. yes, it is despicable. by taking it away itsure presses

thought -- itsure presses thought. rehabilitation is what they do where there is genocide where we remove people for rehabilitation. that is suppress of thought. with regard to the subject at hand to say that significant adverse public reaction over an extended period of time. this is important. significant adverse, yes, there is a group of individuals. they are fair. [please stand by]

... and suppression of thought in this country is a horrible concept. so i think that the arts commission by hiding under the significant adverse public reaction over exhibit period of time, one important segment of people, or even two important segments of people, and we're moving this as suppression of thought, it's a dangerous precedent for the city of san

francisco which is known for its consideration of cultures so i support the appeal. >> i think i would approach it a little bit differently in the following sense. i can remember when this issue of the monument was brought up multiple times. when we created the historic landmark district for civic center, and that was before 1996, issues related to the monument had come up already.

whether that reflects adverse public opinion about it or not is probably not able to be established as a metric. the leading question is, does the art commission have strong and the right to -- standing and the right to do this? when i read through all the documentation beyond the brief, i believe that they do. the main question before us has been stated a couple of times by a number of those supporting from the departments, is whether

the historic preservation commission acted appropriately. that's a much different question than whether we support personally the issues that have been brought forth by the community and the arts commission. it's a much more narrow question and in my opinion, hpc did not act appropriately. they have consistently looked at issues related to anything that is in excess of 50 years old and won't allow changes to it. i don't see how they can support that this move satisfies a certificate of appropriateness.

the question of specifics then is, if you take standard in the part of what their charge is, i don't see how it satisfies it. so in my opinion, at this point, is that the c of a was inappropriately issued by hpc. >> so, after reviewing the brief, hearing oral comment, i may not be able to articulate as well as my fellow commissioner vice president swig, i am completely on the same line of thought he is, by taking it down is not going to remove history. at the same time, what president

fung, it's amazing how we don't remove a window from a house that is 50 years old, but we're going to take the oldest statue out of city hall. so, i agree with both my fellow commissioners and if someone would like to have other further thought or comment? >> i just say that i think commissioner fung's -- it goes to a motion, his point of view was more concrete than mine, although mine are valid for the arts commission piece. >> i'd rather not make the motion. >> then i will.

make the motion to uphold the appeal, based on the fact that the historic preservation commission acted incorrectly as their point of view was inconsistent with -- inconsistent with their typical review of historic locations within the city of san francisco. i'll leave it at that. is that what you think? somewhat? would you please give me the -- >> yes, ok. >> ok. there was a crying baby during that time. >> he was reaching for his microphone, because he wants to

make sure we're doing this in the correct fashion. >> i can repeat what you said and do you want to comment on it? i believe you said you would grant the appeal on the basis that the hpc acted incorrectly and inconsistently with the typical review of a historic -- >> because it was inconsistent with -- >> it's because it was inconsistent with their typical review of historic items. >> and i would ask commissioner fung to please make amendments to my motion, because he expressed himself better than i did on the subject. >> i would add that hpc did not satisfy article 2. no, i'm talking about the committee review.

excuse me standard two of the secretary of interior standards. >> so do you want me to add that to the motion? >> yes, please. >> so the motion is to grant the appeal on the basis of the hpc acted incorrectly because it inconsistently reviewed this matter -- hpc acted incorrectly because their review was inconsistent with the typical review process of historic pieces and the hpc did not satisfy standard 2 of the secretary of interior's standards. ok. on that motion from voice president swig?

president fung aye. commission lazarus aye. commission honda aye. commission wilson aye. that passes and appeal is granted. so that concludes this matter. and we will now move onto item 8, thank you for being so patient. ok, we need to break. ok, we're going to keep going.

ok, now we're onto 8 a, 8 b, 8 c, 8 d, that's are appeal numbers 18-017-018-040 and these appeals were filed by joseph denny and sara perjalian against the department of building inspection at 121 spear street. i can read each appeal. 18-017 protesting the issuance on february 5, 2018 to doing on alteration permit on 2nd to the 5th floors. appeal number 18-018, protesting the issuance of february 6, 2018

to google of alteration permit. 5th floor including build out of work stations, partitions and mechanical, electiontry cal and plumbing and work on 3rd floor mdf room, fire under permit. appeal number 18-040, protesting the issuance on march 7, 2018 to google of alteration permit, 3rd there office with mechanical electrical and plumbing, new partitions, horizontal exits. and appeal 18-041, protesting issuance on march 15 to goal of alteration permit, 6th floor office tenant improvement, with mechanical, electrical, and

plumbing. so we're going to start out with appellants and we have four appeals, so you have 28 minutes. >> madame director, i need to recuse myself for financial conflict. >> ok, thank you. so for the record, commissioner wilson is leaving. and we'll start with the appellant, you have 28 minutes. >> thank you, my name is stephen, i'm an attorney, several of the tenants in the subject units, the subject property being 88 howard also known as 121 spear street, it's the rincon towers. the first seven floors are common to both towers and the

6th floor is commercial. it connects both towers and the floors 7-25 are residential. there is approximately 23 units per floor. and so there is a total of about 418 units. i have with me today several of the tenants and this is just a representative sample. we believe it's just the tip of the iceberg. these tenants have been subjected to horrendous, unlivable construction conditions by the google construction. it's going on in the first six floors, and it starts very often before 6:00. there is several instances when it started before 6:00. there is constant pounding, impact equipment that was being operated. if it does start at -- if it

doesn't start at 6:00, it starts on 7. it goes to 3, 4, 5, every day. even saturdays and sundays. the tenants have measured the decibel levels of the noise they're subjected to. and those -- albeit, they've measured it with smart phones which is a method that is not permitted or approved by the police code, but even then, they've measured consistent decibel levels of both 70 decibels which is something like a nightclub. and this nuisance has caused not only inconvenience, but medical and physiological and psychological injuries to the tenants. now, we're aware that -- we have

the brief that was submitted to the city and count board of appeals on april 12 and they're resting on 2907, which is the standard for acceptable noise levels for construction equipment. that says that if it's at 80 decibels, or measured at a distance of 100 feet and that's permitted within a certain period of time. but, we have proof that google has violated the permits upon which they were issued, upon which they're doing the construction. especially the first permit, which is the first appeal number, 18-017, that is the one that says that they're going to be connecting floors 2-5 with a common stairwell. and that permit said that they

could start at 7:00. they violated the permit. mr. denny is one of the tenants and the main tenant. very violated the permit conditions on several occasion in february of 2018. he has proof of that. as a result of the violation, the department of building inspector came and inspected and issued a correction required notice on february 7, 2018. saying that they cannot start before 7:00. they disregarded that notice on february 14, 2018, five tenants called and complained that they started construction before 7:00. he has proof of this, documentary proof from the dbi. and also, they complained that google has been doing constructing activities on the exterior balconies of floor 7.

and there is no permits that allow google to do that. lastly, we argue that because they violated the existing permits, and because the noise is so horrendous, it goes on for every day, from monday through saturday, sometimes sunday, they can't sleep, they can't think, they can't even talk to each other when the noise is going on. and because of the violations, they're not protected by the construction equipment and you 2907 of the police code, rather the construction activity falls within the regulations required by police code section 2909, applicable to residences, a much lower decibel standard that is you a lowed for con -- allowed for construction activities.

now the -- we believe that the machine they are using is impact tools and equipment. and google agrees with that, if you can see on page 6 of their brief, they say -- page 8 rather. according to the data collected by bcci, the construction noise levels that exceeded the allowable decibels, with impact tools. section 290 #, such impact tools are accepted. so they're agreeing they're using impact tools. 2907-b exempt impact tools from the 2909, 80 decibels within 100 feet standard, but doesn't say which standard applies.

we would argue because it doesn't say which standard applies, then by default it goes back to the 2909 standard, applicable to residences and noises outside residences. and that's a much lower standard. there is appendix to the dbi 29 series -- chapter 29, saying that they compute 55 decibels per noise level as acceptable for residences. now, there is a -- let's see. one argument is because they violated the permit, they're not entitled to protection. the second argument is they're using impact tools and equipment. and that is accepted from 2907. the third is that because of the

longevity, they've been living with the problem since at least october, late september 2017. it's still ongoing. we have no indication of when it's going to end. they keep get false promises, it's going to end in january, february, march. we're not even close to ending the construction. >> sorry to interrupt, they said it's going to extend for another six months. >> ok, because of the longevity and the amount of the noise that is generated, then we also allege that it's tantamount to a fixed source, which a fixed source equipment cannot exceed the decibel levels allowed for residential construction. now i wanted to address google's -- before i let them speak and they're going to have their say. i wanted to let them speak so

that you can hear it from them firsthand. but first i wanted to address our brief. and certain city and points jump out as inaccurate. page 6 says they didn't comply with bic code, that requires notification before they start to affect the residences around the area, i think it's 300 feet around the area, that google or anybody else, the contractor has to put up notices what is going to happen, to give the effected people enough time to make allowances, move out, whatever they want to do. they say they didn't comply because it only applies to permit that is demolition or moving of a structure.

well, they asked for permission to construct a stairwell between floors 2-5. meaning they're going to remove the concrete floors and ceilings. they're going to cut through and remove them, all the way from 2 to 5. the permit pertaining to the 5th floor and the 6th floor, 3rd floor and the 6th floor, contemplates construction of horizontal exit. that's demolition as well. so we say that the bic code, 106 does apply and they violated that code section as well because they didn't give notice. the next point i wanted to make real quick, is that page 8, according to the data collected by cci they admit they exceeded

the allowable 80 decibels measure, but they say with impact tools were being used, well those things are used on a consistent basis. so the 80 decibels are exceeded on a consistent basis. the last point i want to make, the graph they submitted showing they measured the noise level from the outside of the top -- i think floor 7. and this is a suspect as their allegation that our measurements are not valid because we used smart phones, because their measurements are suspect because there is no compliance with sections 2902, noise level measurement, as well as the

regulations promle gated by the building department as to how sound levels should be measured. as you well know, there is requirements for settings, calibration, measurements. we say these measurements are suspect. as they say ours are suspect as well. with that, i'm going to turn it over to mr. joseph denny, he's the one most affected, he's like 18 inches away from the construction activity. >> hi, board, i'm joseph denny, i'm the lead of the rincon residence coalition. sorry. joseph denny. this is my wife sara perjalian,

we were forced to create the rincon residence coalition through sheer fear for our lives to be honest. we're going to play some videos here. it will give you a representation from a smart phone, of just how severe this infliction is. we feel that we're imprisoned in our own homes. paying top rates in san francisco, we're immigrants to the country, and it's outrageous. it happens for 11 hours per day. it starts exactly at 7:00 and we had to fight to get that. so the violations, we'll have additional evidence that we'll put on the projector, but before we proceed, i would like to play three different videos. they last about a minute or two each. i appreciate your patience.

[pounding] [loud sawing noise] unbelievable. ridiculous to be happening on a daily basis. this is a sample of during the day. so obviously we can't record the entire day. it starts at 7:00 in the morning right through dinner.

to compare this, we thought we'd bring this to the outside so you can see what it is using the same technology. so the loudest thing we could think of -- >> unbearable.

i think the 70, one decibel off. so imagine that is your couch. >> speak into the microphone, please. >> so envision that your couch is right -- >> i'm sorry, can you turn off the video. we're hearing two different speakers. thank you. >> so i'm giving a visual explanation of what that would be like to live in. we had two trains, multiple traffic, put your couch in the middle of embarcadero and move in, that is what it's like, 11-hour basis. we have reached out to google for four months. they did nothing until we were

forced to take action and block their permits. for our public health safety. there are four units where people are now taking medication, including my wife who has a severe injury, which has really fueled my anger over this. i am lived. put yourself in the situation. you wake up in the morning and there is literally a jackhammer, a rotor hammer two feet away from your head. that's how you wake up in the morning. that should not be allowed. it shouldn't be allowed. we're on the 7th floor. there is eight inches of concrete separating us from hundreds of google workers with these tools. they did not inform us. they bulldozed their way into this property. this is a sophisticated building, one of the most expensive in the city. it has one of the highest tenant numbers in the city and we're all professionals. how is this allowed to happen? it's allowed to happen because

google is a prestigious name and they want what they want and they're going to get it. i've spent the last 2-3 months working on this and it's unbelievable the amount of knowledge you have to gain and the time you have to put into this with multiple trips to the dbi, multiple trips to various departments and gathering this information. i've spent hundreds of hours on this. so they know that work is needed to be able to fight this. they know that. they have not approached us once, not once, despite hundreds of complaints to the management, who we had to abandon, because they were useless. but they were the conduit to google and hudson. we didn't get one meeting. 75 howard street is under construction across the street, they're tearing down inch by inch the car park. and that is a 9-story car park. that is less noise than what we're going through. and they've already reached out to, they started two weeks ago,

to have a tenant meeting. that's how you do business. so they're clearing the top, they've stopped the demolition and said, let's get together and make sure everybody is happy. they notified us ahead of time so we could take action. google did not, huttedson did not -- hudson did not and they should have. this is a mixed building, with a thin separating layer and it takes up half of the city block. we're prisoners to this. two people on the 7th floor have moved out. they couldn't take it. the unit next to us and the unit two down. phillip and his wife, they're just about to move out and they're a floor up. they can't take it anymore. it has 24 floors. people on the 24th have been e-mailing as the lead to say when the hell is this going to stop? it's going right through the

building. so you don't have that separation of air, the noise is going through everything, all through the molecules, our bodies and damaging us. every one of those four units is taking medication. we didn't take medication before this started and we have medical evidence to prove that. i'd like to -- sorry? so, google has prior knowledge and we have evidence of this. so right here on the left-hand side, google took over the building ten years ago and has been constantly upgrading it. we have no problem with google taking over and monopolizing the

area, it's great for the area. it did the same on the right hand building and brought the building in front closest to the water, renovated that. we went through that, but the noise was acceptable. without one notification, they started this noise one day, 6-7 months ago, and it hasn't stopped. this is an example of the depth of the building. all of this is under construction. that's an echo chamber. we're living on top of it. this is our apartment for example, and right here is a stairwell. that is echoing right up. our bedroom is right here. we actually picked this specific property because it has a patio, because my wife needs to do specific exercises, it's the

only reason why we picked it. and she can't do that now because she's injured. i'm going to go back to -- i'm going to show this document. in the box here, this is from google, the building on the left-hand side of the image, it says due to residential building which shares a wall with the areas under construction, special coordination and scheduling of noisy building activities was an important component. we looked up the complaints on that building, there wasn't one. not one. because they took precautions, because that's a condo building, we rent. consider that. not one complaint. there have been 15 complaints, five in one day.

after we issued -- after the dbi actually issued the first corrections notice. i'll show you why -- the notice and then the evidence to that. i'm just going to show the corrections notice. so essentially, for over two weeks -- >> into the microphone, please. >> for over two weeks, the construction started at 5:05,

5:15, this noise level. it was horrendous, outrageous. i camped out on that parking lot for four days and captured this. i'm pointing out the balcony where we live. you can see we're right there. it's going it show it. it's very difficult to capture sound from that distance, but luckily, we captured this. you can see sparks flying. that's not a blow torch, that's a grinder. i sent this to the dbi.

they sent a very soft corrections notice. this is public safety. they didn't do anything. five days later, saturday, the entire building called down, five people. think about how severe that is, they all called 3-1-1. only after we had to fight with the dbi to get them to protect us, which they still haven't done. essentially, we're in limbo because the dbi, we went through administrative processes and remedies. they've done nothing. i filed with the department of health. they've done nothing. they ping pong me back and forward. between the dbi and the department of health. no one has done a thing. we called a meeting with google a few days ago. nothing. this is the only thing that is effective in protecting our health.

i'll show you the documentation right now. so right here, this is the date that i captured the video and sent it to the dbi. they issued the corrections required and suspended the permit, but they shouldn't have done that in my opinion. i can't get a straight answer why they did that. this should have been a corrections request for the entire project, because they put this under a permit. this entire building is working. it goes all the way back a city block. who knows what is going on. so they filed it under this. in my opinion, the proper documents, and it's only my opinion, this is what should have been, a violations description should have been

issued to them. and then a stop work order should have been issued the moment that the complaints continued. this is the evidence of the five calls that came in. the complaint number is here. and essentially -- let me just get the date. this is the 14th, but five days later. and we have starting before 7:00, noise level unacceptable, they can schedule this hammering after 9 a.m. multiple 3-1-1. and you have the five calls. that's in a weekend. this is saturday morning. there are multiple other complaints.

i won't take up your time with it. so this prior knowledge, because they knew what they had to do and they knew the precautions they had to take and technology to implement. they showed up with crews and hammered the crap out of it. excuse my french. according to the police article -- >> sir, your time is up. you'll have an opportunity to say more on rebuttal. >> i have a question. >> go ahead. sir, how long have you been at the property? >> two years. >> when did the construction start? >> it first started -- my memory is june or july, they started on the patio just below us. >> and when you rented it, did the management indicate there

would be extensive construction at the property? >> absolutely not. they just rented the apartment next door and they didn't tell them. >> will these people get to speak also? >> if there are other tenants, they can speak during public comment. so let's hear from the permit holder. >> clarification, can they speak as long as they're not party to -- >> right, i understand they're tenants, so they can speak during the public comment period. >> president and board members, david blackwell on behalf of google, the tenant of the subject property and the holder of the four alteration permits

at issue. google has assembled a number of people to attend the hearing to answer any questions the board may pose. we have project executive, just raise your hand, regional facilities manager and head of public affairs for california. and cbre, we have the senior director of project management. she was here. i'm sorry, and senior project manager. and we also -- google brought a third party acoustics expert and the manager for the general contractor on this and he'll take the balance of the time. we'll introduce his team. we are not planning on going 28

minutes, we're going to keep this short. before i turn it over to bcci what is happening on the ground. i want to make a couple of points. i mention them in my brief. and mr. denny said this a couple of times, that google didn't do any outreach, we gave them the cold shoulder and that's categorically wrong. as soon as google found out about the first appeal filed on february 7, google reached out multiple times to the appellants and said, let's sit down and talk, what is the problem? they got no response. they didn't respond, they said we don't want to talk to you. so we got complete radio silence from the appellants, despite all these concerns they had about google, nothing, nothing and they applied for their rehearing request, or their rescheduling request. and the day that president fung

denied that request was a friday. i think it was april 6. on monday, we got our first communication from the appellants, first time. they say we want to talk to you, but it's according to the terms of our demand letter which we're attaching and that demand letter is an exhibit to the brief, where they say you pay us money for the damages we suffered, you pay for them and then we'll talk. we're not going to deal with that. at that point, we're not going to get involved in those discussions. so when you hear appellants say that google is a bad actor because they never reached out, it's absolutely the contrary. google reached out multiple times. the lead person of this can testify to that if you wish, but she got no response or substantive response at all. i want the record to be clear on that. again, mr. denny sd