tv [untitled] April 3, 2011 2:00pm-2:30pm PDT
a waste site. another issue being raised is that the e.i.r. fails to adequately address the potential displacement of thousands of existing residents. however, pursuant to the terms of the proposed development agreement, all residents existing apartments proposed will continue to be residence at the time demolition is proposed would be provided with the opportunity to move to a new apartment before the unit is demolished. construction demolition would be phased to ensure the residents of the units to be demolished would be required to move only once. under the proposed e.a. these news apartments would be rented at the same rate as the residents' existing apartments prior to demolition and would be covered as the same rent rules as contained in the ordinance. existing residents would not be required to move off-site at any phase of the project. the proposed e.a. which is part of the project sets forth these
requirements. concerns have further been expressed the e.i.r. fails to adequately analyze displacement impacts in the event that such provisions of the d.a. requiring replacement units be subject to the city's rent control requirements are not enforceable. it should be noted the e.i.r. fully analyzed the proposed project which includes these provisions. any changes -- any future changes to the development agreement are speculative at this time, and would be subject to further environmental review as appropriate. however, it's currently proposed the project involves both new housing and replacement housing, thus it is unlikely there would be a significant displacement impact in the event these provisions are changed or removed. because the project, through its proposed development agreement would provide replacement units for existing tenants and because those
replacement units would be rented at the same rent controlled rate as existing, the draft e.i.r. concluded the proposed project would have less than a significant impact on population and housing. >> if i could ask a question to follow up on this. you're essentially making the argument that if there's not going to be a displacement of residence because it assumes tenants will be rehoused and not displaced, then we don't need to consider that as a significant impact. but if that underlined assumption is not true, if we question that, how should we think about the e.i.r.? >> if in the future -- we don't know at this time if that is the case. and therefore, it's consider to be speculative it would be overturned. so if there are a future change that would -- that would remove that, then we would have to consider further environmental review pursuant to ceqa.
>> so, in other words, if in the future there were a court to overturn some of these -- overturn the terms, then at that point you're saying we'd come back for further e.i.r. review. >> we'd need to examine what level of environment review that would require. >> wouldn't it be a little too late at that point? >> that's -- you know, we have to analyze a project based on how it is proposed for us and the proposal includes replacement of the housing and that is what we've analyzed. >> supervisor campos? supervisor campos: i want to follow up on that. look, i'm trying to understand what the analysis from the planning department actually is. you're saying on one hand it's speculative to talk about whether or not there's displacement here but one of the questions i have is whether
or not the refitting is also speculative in the sense you're making an assumption about state law. you are making an assumption that in fact the provisions of the development agreement that provide certain protections are in fact enforceable. and to me, i don't want to delve into the legality or illegality of that, you i think that's still a question mark so i wonder if you can address that issue, because to the extent you're talking about speculation, it seems there is speculation underlying the very analysis that you're relying on. >> phil waco of the planning department. i think all we're assuming is the development agreement is a contract between parties that is binding. in the absence of anybody making a determination that it's not binding, we're treating that as a -- the
proposal of the project is embodied in the development agreement. supervisor campos: there's an assumption there's a legally enforceable binding agreement here? >> there's an assumption there's consideration on both parties which is the basic prerequisite of a contract and contracts in this case are assumed to supersede state law if they don't violate state law. supervisor campos: what happens if there's a reasonable argument that in fact is not the case, what does that do to the analysis? >> i think as mr. cooper said earlier, if in fact it was found that the contract was not binding for whatever reason, then the issue of displacement would be reopened and i don't think, president chiu it is too late because at that point the e.i.r. is no longer valid in terms of the displacement issue so the element of the project would be reopened and wherever the project was at that state, they'd have to address that issue based on changed circumstances. supervisor campos: i think that's the point i'm making
here which is that you are -- your analysis is based on this assumption that in fact you have a legally binding agreement, and to the extent that that may not be the case, in my view, you're talking about a speculative analysis because that's the assumption you're making. whether or not that's the case of something remains to be seen. but that's a real concern that i have about the analysis that you're following here. >> to restate, i think it expects a normal contractual range between the city and another party. and i want to further emphasize if it were found not to be valid, restating for the third time, the environmental document itself would need to be reopened, the issue of displacement would be reopened, and whatever was not -- had not
proceeded to that point of determination would have to be revisited. >> and may or may not be the case. supervisor campos: how would you respond -- president chiu: if i could ask members of the public to remain silent during this conversation. supervisor campos: we're being asked not to make judgments on the ceqa findings but rule on the adequacy, the accuracy, and completeness of the ceqa document that's before us. so the question is how accurate, how adequate can a document be if you're talking about the underlying analysis based on this assumption that you in fact have a legally binding agreement? is there a way we can find the threshold of the adequacy of
the ceqa findings if you're talking about somewhat of a leap of faith here? >> i'm not sure i have anything further to add. i guess i don't consider it a leap of faith that a legally executed contract between parties that has all the elements of a contract should be presumed to be invalid. especially if the remedy is that the underlying environment document itself would need to be reopened if it was found to be invalid. supervisor campos: you can proceed. i know there are others who have questions but i just wanted to ask that point. president chiu: i wanted to follow up with one more point. i think what i'm hearing from the appellants is their assumption the underlying agreement may have terms that may not eventually turn out to be enforceable which obviously is a difference of opinion from the project sponsor who believes the contract terms, and i believe -- and i believe the two contracting parties believe that the terms are enforceable.
how do we evaluate that difference of perspectives of the agreement in the context of whether or not we approve an e.i.r.? >> i'm going to defer to the city attorney on this because you're asking a legal question, we're trying to answer in context of what project was presented, what the terms of the agreement were and if there were a legal question, it really shouldn't be to us. president chiu: if i could ask the city attorney's office. >> deputy city attorney malinna burn through the president. president chiu, i'm not sure i fully understand your question so if you could please restate it. president chiu: the e.i.r.
assumes we have a validly bound contract between two parties. and obviously the appellants are raising arguments some of the contract terms may not be valid. so if that is the case, depending on where -- how we view that, how should we think about whether or not to approve the e.i.r.? >> i think that the only item -- the only contract provision that's at issue here is the question of whether the rent control restrictions that are included in the proposed development agreement would in fact be binding on the project. if i understand correctly. the replacement housing requirement is not at issue so the fact that the project proposes to provide replacement housing, we don't believe, is being raised as an issue here. it's a question of whether rent control would be applied to that replacement housing. so to kind of take it from the ceqa perspective, ceqa doesn't require we analyze social and
economic impacts of a project except insofar as they may lead to indirectly environmental impacts related to the project. as i understood planning's response, they don't feel that even if that rent control restriction is removed that would necessarily lead to environmental impacts from the project. i'm paraphrasing here what planning has already stated. because the project does include replacement housing. and they've also stated that should that change in the project come to pass in the future, that would be analyzed in a further environmental review, as would any other project changes. we always understand that ceqa requires we analyze the project proposed in front of us at the time it's proposed for approval, and if the e.i.r. is certified, the project is approved, but in the future, changes either from the circumstanceses surrounding the project or in the project itself are created, then that can trigger further environmental review.
so i am not sure if that -- president chiu: you're saying if we find out sometime down the road, let's assume we approve the project, it's being built 10 years down the line, parkmerced, or a future owner of this property were to change the terms or somehow not honor the terms, at that point the e.i.r. would be open, right? >> well, presumably we would need to look at what changes that has created to the agreement as a whole and what further approval actions are before the city. but assuming that that resulted in some significant changes to the project, then it would require -- not necessarily the reopening of this document in front of you, but potentially some kind of further environmental review such as an addendum, a subsequent or supplemental e.i.r., that would be up to m.e.a. and the planning department, potentially in conjunction with the planning commission and the board on appeal to determine what the appropriate levels of environmental review at that point would be based on what the actual changes to the project are.
president chiu: i appreciate that. just as a follow-up comment, obviously if that happened 10 or 15 years down the line, i don't know that would be solace for the folks affected by that we have to go through that process again. but obviously that's something we're going to have to consider. supervisor weiner? supervisor weiner: i have a question, i don't know if it's for planning or the city attorney. but supervisor campos made a reference to the cost of hawkins issues being potentially speculating that we're potentially speculating whether it would be enforceable. and i guess sort of a combination comment and question that there are -- in any major development agreement it seems that there are a lot of aspects of it where you're making predictions that are never 100% certain. so we're making predictions did the transportation aspects of it, and at some point down the
line, say, the rerouting of the m, something could come up that would require a reanalysis or a change to that, and if that happens in the middle of a major development where something unanticipated happens or something you thought wasn't going to happen happens, what do you do. >> it's a good question in terms of it defining the situation more broadly than just the issue of the rent control, think the city attorney spoke that if there's an element of the project that changes in a way that was not covered in the e.i.r., it will need to be reopened. the reopening of the e.i.r. would be on whatever terms changed. so if the transportation infrastructure changed and there's some better idea than what was analyzed here that surfaced, that better idea could not proceed until
additional environment orders review was done and that's made across the board. if there are elements of what the agreement is and they are changed either by the parties or by court action, if there's something that is different than what was analyzed here, it would need to be reanalyzed. >> thank you. supervisor campos. supervisor campos: if i could follow up, going back to staff. earlier if it were noted it were found by a court some of the protections that are accorded to tenants are not enforce annual -- enforceable, that under the e.i.r., you would have to come back and probably do an additional analysis of the environmental impact, is that correct? >> that's -- yeah. supervisor campos: and that assumes that if there is displacement of those tenants because those provisions are not enforceable, that in fact there could be environmental impacts, right? >> yes.
i guess the thing to emphasize here is displacement is in phases. no displacement happens until replacement units are in place. at the point this would become a trigger would be those units are available, somebody is being displaced from their home and the unit is not available according to the terms of the agreement. supervisor campos: this is the sticking point for me is to the extent that's the case, to the extent you have a scenario where if the sections of the agreement that provide those protections are not enforceable, you could have environmental impacts, i'm trying to understand how it is that we can actually find that this e.i.r. is adequate and complete because as you know, ceqa provides that public agency should not approve projects until all feasible means available have been employed to substantially lessen the significant environment effects of such projects. so to the extent there is the possibility that displacement
could in fact lead to environmental impacts that have not been addressed by this e.i.r., it would seem to me that there is a reasonable argument that we have to take all steps following ceqa, that all the feasible means to prevent these future actions from happening, so on the issue of enforceability, one of the questions that comes to mind is how haven't we gone and received, tried to get their tore -- get declaratory relief that says these provisions are enforceable? it would seem to me if we want to have as complete a ceqa document as we can, we need to tie up loose ends so we prevent that possibility from happening. >> you're an amazing attorney but i'm not paid to be an attorney.
if you're talking about declaratory relief and the circumstances which the city would have standing even to ask me, again, that's a city attorney question. president chiu: i'll ask our city attorney to respond to the part of is it possibly to get a report that these es enforceable. >> we've looked into seeking declaratory relief or validation action and do not believe that is possible. supervisor campos: i would say i would be interested -- and i don't think this is the right forum to discuss that, but i would be interested in exploring that possibility more because, you know, the concept of the declaratory relief is to provide agencies or parties the opportunity to get a court to opine on issues of dispute like to the extent there is a dispute here. and so to the extent that we're
going down the road approving an e.i.r. as a complete and adequate document and there is that potential loose end, i do think that's a real concern and really calls into question the completeness of this review. [applause] president chiu: supervisor kim. supervisor kim: i have follow-up questions to what supervisor campos brought up because i'm hearing something different from our city attorneys. so in the planning department's response to appellants about the potential loss of rent controlled housing if the d.a. can't be enforced, the response was that because there is a development agreement that there is no loss of rent controlled units. but i thought i heard the city attorney mention that e.i.r.'s don't include socioeconomic impacts, so would the e.i.r.
need to address this if this were a possibility? >> deputy city attorney merletta burn through the. . they don't require you analyze the direct effects of social security -- socioeconomic changes but require you to analyze the environmental impacts that result from those changes. so if the change in the rent of the housing actually leads to some kind of physical effect on the environment due to displacement then we'd need to analyze those effects. it's an indirect effects question. supervisor kim: i would disagree with the planning department that if we were to find this were not enforceable, we then would have to go through another e.i.r. because it could be potentially that a developer could decide much later after the units had even been built they no longer had to comply with the d.a., right? isn't that possible that it could happen much after the
units are built and residents have moved in that either this current developer or a new developer could sue and say this isn't enforceable given some of the case law that's -- some of the rulings that have come down from state law. so then it would be too late. >> it this is under the assumption we would discover some way along the development process. [applause] >> deputy city attorney, i believe you're asking it's possible someone could sue us at any point along the development process for this project or including after the project is done, and i think you're correct. >> this is charles sullivan, city attorney's office. i know the d.a. approval is not before you today. i did want to just opponent out there are a number of things in the draft development agreement
that address the things we have done to bolster enforceability and most importantly in addition to talking about how the city would not approve this agreement without the nonapplicability to the cost of hawkins, we have every potential owner sign an assignment of asumings agreement and record against the property in addition to the development agreement all the protections that have been incorporated into this development agreement. so there is no way anybody could become an owner of this property without signing a contract directly with the city acknowledging that they don't -- they agree not to sue and that the -- that these provisions do not apply. they sign the document. supervisor kim: i was not going to bring up the d.a. because that's not what is up for vote but the adequacy of the e.i.r. now i'm hearing the e.i.r. would need to address
replacement of -- or displacement -- potential displacement and think there are legal questions in terms of the enforceability of the d.a. that's in question. >> by the way, colleagues, it's my understanding having spoken to the city attorney's office, obviously we've gotten some perspective on these legal questions but do know this is advice that's been provided to us in our capacities as elected officials and i just want to remind folks of that. supervisor campos. supervisor campos: i think this kind of discussion might be more appropriate perhaps in closed session to the extent that we're talking about legal positions that impact the city. but i do want to, for the record, point out what at least the case law, the two cases that i have read independently say about this. you have the embassy versus
city of santa monica where the court basically says that in that case you had a situation where there was an agreement between the city and the developer, and this is whether the court said -- what the court said, nor are we proceeded by the city citation to other statutes which waiver is specificallyly probated and the city accompanying that argument it is not prohibited and thus allowed. as we've seen the ellis act provides a contractual waiver is unenforceable. i mean, that's that case. and then you have the palmer versus city of los angeles case and again, it goes back to the issue of whether or not there is a waiver here that can happen. and this case raises concerns. so i don't think that we should delve bought -- into the specifics of the analysis but i
think there are enough issues here that, again, raise questions about the adequacy, completeness, and accuracy of the e.i.r. analysis which ultimately is what's before us. [applause] president chiu: in response to supervisor campos' comments, he was reading from the case law but probably think it's not appropriate for us to discuss the underlying legal arguments and how they might apply in this case but agree this might be a appropriate topic for a future closed session. supervisor elsbernd. supervisor elsbernd: to the president, supervisor campos or to the city attorney's office. the two cases you referred to, did those analyze the density bonus exemption in costa hawkins or did those analyze the waiver exemption in costa hawkins? and with the legislation that will be in front of us, the development agreement, is that the waiver or is it the density bonus exemption?
supervisor campos: i don't know the extent to which we can discuss this, but the problem, supervisor elsbernd is that there is no case that specifically addresses the issue before us where density bonus actually satisfies the exemption this is -- which the issue here which is there is no case that specifically addresses, how do you know what you're doing is in fact enforceable? supervisor elsbernd: when you said you wanted to put on the record these cases are the precedent, i wanted to be very clear, they're not the precedent because there is no precedent on this issue. and i think we agree on that point, there is no case law specifically on whether or not the density bonus exemption in costa hawkins is applicable. supervisor campos: that's the point. you're making my argument for me. because if that's the case, if there's no specific case on point, then there's no guarantee this assumption that the planning department is making is in fact accurate. which again goes to the adequacy of the e.i.r. supervisor elsbernd: you're
making my argument for me but saying those two cases you've cited are not on point. president chiu: if i have a concluding argument, my guess is every one of us colleagues as well as the two parties want to do everything we can to ensure the enforceability of these contract terms but the question is whether or we've got enough now under the d.a. cleggs, any additional questions? -- colleagues, any additional questions? planning department, do you have any final concluding comments? i know when i officially asked the question, i think i interrupted you in the middle 6 your presentation. and you have three minutes left if you want to use them. >> thank you, president chiu. one last issue that's been raised a few times that i'd like to address is the issue of the seismic capabilities of the existing towers.
i was explaining in the e.i.r. those towers that would remain on the project site and the seismic conditions of the existing buildings to remain would not be affected by the project. those towers are existing. the e.i.r. does, however, describe the risk of major earthquakes of the site but does not find these to be significant impact of new buildings and the existing towers that would remain would meet the applicable safety codes. the towers have been evaluated and were found to be sound. that concludes my presentation. we continue to believe that the e.i.r. is adequate and accurate. president chiu: supervisor mar. supervisor mar: thank you for the presentation. i have concerns there aren't reasonable alternatives considered in the e.i.r. and you brought up san francisco state and brotherhood way developments and i know the 19th avenue corridor study
looked at the massive plan from f.s. state from 2007-2020. i think there were only a couple paragraphs in the e.i.r. that considered that san francisco state is planning to grow from 20,000 students to 25,000 students in a short period of time. that's increasing about 25% of the student population so that's 5,000 new students. and as a former san francisco state faculty member, i know parkmerced very well because that's where we circle driving around to find parking and i know that gridlock and it increases in the number of students and about 700-plus faculty and staff will increase that gridlock as well. i'm just wondering why there wasn't more of an analysis of the creative arts building that's going to be built with 1,200 feet auditorium and a lot of other improvements that san francisco state is planning. i know you said they're not set in stone, but it's definitely in stone, but it's definitely something that san francisco
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