1.

Call to Order and Roll Call – Roll call was taken and a quorum was certified.

COMMISSION MEMBERS PRESENTS:

Rodrigo Santos, President
Alfonso Fillon, Commissioner
Noelle Hanrahan, Commissioner
Philip Ting, Commissioner

Bobbie Sue Hood, Vice-President
Roy Guinnane, Commissioner
Criss Romero, Commissioner

Ann Aherne, Commission Secretary

D.B.I. REPRESENTATIVES:

Amy Lee, Assistant Director
Ken Harrington, Special Assistant to the Director
Jim Hutchinson, Deputy Director
Sonya Harris, Secretary

President’s Announcements.

Mr. Henry Karnilowitz thanked the Department for inviting him to the annual picnic and in particular thanked Carolyn Jayin and Agatha Narvaez for doing a wonderful job.

Mr. Karnilowitz thanked Inspector John Aires for fitting his project in the previous week for a rough framing inspection that he had requested and thanked DBI for having such a wonderful staff.

Mr. Joe O’Donoghue said that he wanted to comment on DBI staff and stated that since 1986 the RBA had sought to improve efficiency, which has come about with excellent staff.  Mr. O’Donoghue said that service would now be affected because of layoffs and the illegal raiding of the treasury of this Department by the Mayor’s Office.  Mr. O’Donoghue said that single mothers have been hardest hit and spoke of someone who has been an excellent employee of the City for seventeen years and has now been laid off as she was bumped by a person who is on Workmen’s Comp.  Mr. O’Donoghue suggested that the Mayor could have avoided taking the money from DBI by putting property transfer tax fees on commercial buildings when they are sold.  Mr. O’Donoghue stated that a Bank of America building was recently sold for $400M.  Mr. O’Donoghue said that he also supported a tax on residential buildings when they are sold for over $5M.  Mr. O’Donoghue said that when the City lays off people the entire local economy suffers.

APPEALS PURSUANT TO SECTION D.3750.4 OF THE CITY CHARTER
CONSOLIDATED APPEALS – 80 NATOMA STREET
Appeal by Myers Natoma Venture, LLC, et al Represented by Steefel, Levitt & Weiss
Appeal by TRANSDEF Represented by Luce, Forward, Hamilton & Scripps

a.

Report, discussion and possible action regarding the Building Inspection Commission’s jurisdiction pursuant to Section D3.750-4 of the City Charter over this appeal.

b.

Presentation by parties including witnesses.

c.

Deliberation and possible decision by the Building Inspection Commission.

President Santos asked the appellants to state whether or not they would need additional time for their appeals.

Mr. Jack Myers introduced himself as Chairman and Chief Executive Officer of Myers Development Company and stated that Steve Atkinson would act as counsel for Myers.   Mr. Myers asked for an additional ten minutes for their argument.  The Commissioners were in agreement with this and granted twenty-five minutes for each party to present their arguments.

Mr. Steve Atkinson of Steefel, Leavitt and Weiss said that he was appearing on behalf of Myers/Natoma Venture.   Mr. Atkinson said that in his presentation he would show that DBI’s suspension of the permits beginning on June 7^th was improper and unjustified and that this Commission should lift the suspension.  Mr. Atkinson gave a background of the 80 Natoma Project and the history of Myers/ efforts to proceed with that construction over the last two years and how DBI and the City have acted over the past three months to prevent that construction from proceeding. 

Mr. Atkinson gave the following background:

The project is an approximately 475’ residential high rise which would be the largest residential high rise west of the Mississippi and when constructed would contain approximately 420 residential units, 42 of which will be affordable.

·   Project was first approved by the Planning Commission in 1993

·   In 1998 the Planning Commission extended that conditional use and Section 309 approval setting a February 2001 deadline for the project to obtain a site permit.

·   Based on a February 2001 site permit the sponsor would have had until February 2004 to begin construction, and until February 2007 to complete construction without any extensions.

·   In 1978 the property owner was Swig Burris Equities.

·   In September 1998 Swig applied for a site permit.

·   One month later a permit was issued for temporary shoring.

·   In February 1999 the site permit was issued by DBI and Swig began work to provide shoring at a cost of $2.5M.

·   Swig applied for and received addendums to that site permit which continued until the end of 2000.

·   Swig had financial problems and Prudential initiated foreclosure action in the Spring of 2001.

·   In April 2002 Prudential took title back to the property.

·   In October 2002 Prudential issued a request for proposal and in December of 2002 Myers was selected.

·   Myers began a lengthy process of confirming that nothing stood in the way of developing 80 Natoma including the ability to make changes to improve the efficiency and marketability of the project.

·   In Spring 2003 meetings were held with Planning and DBI to confirm the validity of the 1999 permits and the Planning Commission entitlements.

·   Meetings continued through 2003 and into 2004.   DBI advised Myers that they needed a site permit alteration due to certain changes Myers wanted to make to the project.

President Santos asked if Myers had owned the property at this time.   Mr. Atkinson said that Myers did not own the property at this time.

·   DBI by its words and actions confirmed the validity of the site permit.

·   In October 2003 Director Chiu sent an email confirming that the site permit issued in 1999 and the time allowed to begin work on this project was six years from issuance.

·   Late 2003 into early 2004 a permit to drive indicator piles was issued and an application for a site permit alteration was filed at DBI.   A structural Peer Review Panel met several times at the suggestion of DBI.

·   On March 5, 2004 DBI issued the site permit alterations, plus a revised shoring and excavation permit.

·   Only after this did Myers close escrow on the property.

·   Shortly thereafter DBI issued the first addendum allowing piles to be driven at the site.

·   Work began in early May and by June 7, 2004 approximately 75 piles had been driven.

Mr. Atkinson said that he wanted to review the events of the last three months and how the suspension came about.

·   On May 25, 2004 Alice Barkley acting on behalf of TRANSDEF sent a letter to the City asking for a Stop Work Order on the grounds that the permits were invalid.

·   On June 7, 2004 TRANSDEF’s Stop Work Order request was listed on the DBI agenda as a      communication item, without any notice to Myers.

·   Following that meeting Director Chiu issued a two-week suspension for the purpose of   further investigation of TRANSDEF’s allegation that work had not timely commenced under the 1999 permits.

·   On June 15^th Myers made a request to Director Chiu for an evidentiary hearing before DBI before any more decisions were made about the permits.   

·   On June 17^th the Director Chiu acted to continue the suspensions on the grounds that work had been suspended or abandoned for over ninety days.

·   On June 18^th the Director said that work should be suspended due to geotechnical concerns.

·   On July 14^th the Planning Director replied to Director Chiu’s June 17^th letter confirming that the March 2004 permit was valid under the Planning Commission’s 1998 approvals.  This letter was written by Director Gerald Green.

·   After the August 16^th hearing DBI acknowledged that the 2004 permit was valid. 

Commissioner Guinnane asked about when the first lawsuit was filed on this property, as legal action would have an affect on the timelines for the permits.   Mr. Atkinson said that it was in April 2001 and was resolved in April 2002 when Prudential took title so there was a one-year period for dealing with financial issues.

Commissioner Guinnane asked about a lawsuit filed by Turner Construction on March 8, 2004, which was a mechanic’s lien and might also affect the timeline.   Mr. Atkinson said that work was stopped in 1999 because of a dispute between the contractor and Swig, but stated that Steefel was not counsel to Swig so he did not know the exact timeline.  Commissioner Guinnane said that if there were a two-year lapse it would give Myers another two years extension on top of the six years for the permit. Mr. Atkinson said that there were lawsuits that clearly held up the project.

Vice-President Hood said that she did not think that there was any question that the Department had withdrawn its objection on the basis of the site permit having expired because Mr. Hutchinson validated that by his letter of August 16^th.   Mr. Hutchinson said that on August 20^th he ruled that the altered site permit was valid.

Mr. Hutchinson said that the Department specifically let stand Director Chiu’s original suspension of the two site permits of 1998 and 1999; however that is inconsequential because the two previous site permits are unnecessary to building being that the 2004 altered site permit has been deemed valid.   Vice-President Hood said that she thought this point was moot.  Deputy City Attorney Catharine Barnes said that this might be an issue for the other party so it would not be appropriate for the Commission to rule on it without hearing from the other party.

President Fillon suggested letting the party finish his presentation and wait for questions until after.

Mr. Atkinson said that TRANSDEF does question the validity of the 2004 permit.

Mr. Atkinson went back to his report and issues he wanted to make for Myers’ appeal:

·   The suspensions of June 7^th, 17^th and 18^th were improper because they were issued without a prior hearing in violation of the Constitutional Right to due process.

·   There was no notice to the permitee and no opportunity for a hearing prior to the suspension.

·   That there be evidence in support of the suspension.
DBI’s June 17^th letter only mentions permit validity issues and does not mention safety.

·   Geotechnical concerns were raised in DBI’s June 18 letter, but did not identify any safety concerns.

·   The City is now claiming that there is safety issues regarding the potential settlement of the foundation of 80 Natoma, a foundation that Myers is not yet authorized to construct.

·   There was no basis for a Stop Work Order based on the validity of the permits because that has been recognized and it is evident that work was started under the 1999 permits.

·   The soil cement wall clearly proves that construction was started.

Mr. Atkinson stated that he wanted to speak about the 2004 permit and made the following points: 

·   The March 2004 is valid and authorizes construction.

·   The Building Code allows DBI to issue an alteration permit when a prior permit expired due to work that was started, but not completed.

·   $2.5M was spent on a soil cement wall, which was the first phase of construction under the 1999 site permit.

Mr. Atkinson said that Proposition H does not provide any basis for revocation of the 80 Natoma permits and said that in any of his letters Director Chiu did not refer to Prop H.   Mr. Atkinson made the following statements:

·   Prop H was not raised in TRANSDEF’s appeal, but was now stated in its briefs.

·   80 Natoma is not on the route of the very specific route for a train track and terminal down Essex Street.

·   Prop H directed the City to protect a route by taking further actions through resolutions or ordinances and none of that was ever done.

·   This would represent an unconstitutional taking of the authorized entitlements of this project.

Mr. Atkinson said that he wanted to address the geotechnical issues that are preventing this suspension from being lifted and made the following statements:

·   The geotechnical issues are not safety issues and should be addressed in the normal course of the addendum process.

·   80 Natoma’s piles and foundations design were based on the advice of Mr. Yap of Treadwell & Rollo one of the City’s premier geotechnical firms.

·   Treadwell & Rollo’s calculation of the expected settlement is based on their intimate knowledge on the performance of local soils including those of projects in the immediate vicinity of 80 Natoma.

·   Myers has been trying to set up a technical meeting with DBI to solve these issues, but the City Attorney’s Office has continued to block this technical meeting.

·   The Commission needs to recognize that these are issues that are handled in the proper   addendum process and are not issues that are the basis for suspension.

Mr. Atkinson gave his closing statements, which were a recap of the above issues.   Mr. Atkinson asked that the Commission lift the suspensions today.

President Santos stated that the Commission would hear from Ms. Barkley representing TRANSDEF before asking any questions.

Ms. Alice Barkley stated that she wanted to start by making a couple of corrections to Mr. Atkinson’s statements.   Ms Barkley made the following statements:

·   The e-mail referred to from Frank Chiu did not state that Myers had six years to start work it was that they have six years to complete work from a start date.

·   The piles could not be separated from the foundation.

·   Prop H is not a taking of property and initiatives and ordinances are defended vigorously by the City Attorney’s Office.

Ms. Barkley stated that staff was correct in saying that this is a very simple case.

Ms. Barkley questioned if work actually started under the 1999 permit that authorized construction of the building, not anything that was done before, but anything pursuant to that permit.

Ms. Barkley gave her explanation of various documents.

·   A 1999 permit was submitted in May and the first addendum was approved for work to begin

·   A February 1999 site permit that was issued was superceded by that permit.

·   The site permit was issued in May of 1999 and a site permit does not allow construction.

·   The Department relied on a job card that said that work had started under the site permit of   June 22, 1999.

·   There was a job card attached to the February 1999 site permit that was superceded.

·   There was an inspection job card for January 22, 1999.   Work was started five months before work was authorized.

·   The 2004 permit was not submitted until December 16, 2003 and was for a concrete building.

·   There was a conditional use application in 2002 that said the property was fenced off in late 1990 in anticipation of planned construction, which did not occur

·   January 24, 1999 a construction monitoring report that dealt with the slurry wall that said that the completion date was achieved the week of April 20; the completion date was two months before work was authorized under the 1999 site permit.

·   Work was stopped because work was scheduled for June and July, but until authorization was received everything was stopped.

Commissioner Guinnane said that he had some concerns about selective enforcement with this project and pointed out a project at 150 California Street where the site permit was issued on 11/19/90 and there was no inspection until 4/06/99 some nine years later.   Commissioner Guinnane also cited 555 Jackson Street where the site permit was issued on 12/23/97 and there was no inspection until 12/09/02 and asked what was the issue with those properties and what the Department’s policy was.  Mr. Hutchinson said that there could have been potential litigations that stopped the clock and with the 1997 project the developer could come have come in and asked for an eighteen-month extension.  Mr. Hutchinson stated that anyone can come in and pay for more extensions, but this does not always happen.  Mr. Hutchinson said that he would hope that all projects would be treated equally and said that he could go back and research these two properties. Commissioner Guinnane said that he did not think there was any issue with this project at all.  President Santos asked if the Department used the underpinning of adjacent properties and other necessary work done on these properties to indicate that work had started.  Mr. Hutchinson stated that this was standard practice at DBI with buildings of this size.  Vice-President Hood said that this has been her experience over several years; that it is not written anywhere, but is understood and has been indicated in meeting notes and other documentation. 

President Santos asked about the selection of the Peer Review Panel and who paid for it.   Mr. Hutchinson stated that the project sponsor pays for this very expensive process.  Mr. Hutchinson stated that because of the complexity of this project Director Chiu had hired yet another group of experts to review the plans of this project and said that they had been working for the past couple of weeks.  Mr. Hutchison said that he would find out how extensive this research was, how much it was going to cost and how it would be paid for. 

President Santos asked for public comment.

Mr. David Schoenbrunn introduced himself as Chairman of TRANSDEF.   After much discussion regarding Mr. Schoenbrunn’s status as a member of the public or an appellant and public comment from Mr. Joe O’Donoghue asking that Mr. Schoenbrunn be allowed to speak, the Commission decided to allow rebuttal time to be ten minutes.  Mr. Schoenbrunn would be allowed to speak during TRANSDEF’s rebuttal time.

Mr. Norman Roth of San Francisco Tomorrow spoke against the project stating that the 2004 alteration permit should never have been issued.   Mr. Roth said that Proposition H’s intent was that the Cal Train/TransBay Terminal be connected and asked that the alteration permit be revoked.

Mr. Ken Rakowski introduced himself as Vice-Mayor of Emeryville and said that this transportation hub would reap economic benefits for the 200,000 – 300,000 people that would be moved in and out of San Francisco.   Mr. Rakowski stated that he was against the project and said that Proposition H should have been imposed as the public desired.

Ms. Margaret Osumi of Bay Rail Alliance spoke against the continuation of this project and handed out copies of Proposition H.   Ms. Osumi said that Proposition H was a City priority and that no downtown development was to interfere with the extension.  Ms. Osumi stated that the Myers project had changed gears many times and that there was no set plan.  Ms. Osumi asked that the BIC continue the Stop Work Order and revoke the 2004 permit.

Mr. Joe O’Donoghue of the Residential Builders said that the Director had made a decision based on interviews and research that work had begun on this project.   Mr. O’Donoghue stated that high-speed trains are needed, but so is development and said that Mr. Myers had acted and behaved like a developer.  Mr. O’Donoghue said that it has been DBI policy to determine the start of work in a very broad policy and said that this project should be treated the same as other large projects in the City.  Mr. O’Donoghue pointed out that Prop H will have to raise Bonds and said that no Bond issue had been passed to date.  Mr. O’Donoghue said that both the development and the train project should be able to exist.

President Santos called on Mr. Myers’ counsel to begin rebuttal and reminded everyone that ten minutes would be allowed to each side for rebuttal.   Mr. Steve Atkinson said that the key issue before the BIC was the start of construction and DBI’s policy has been to include the shoring permits as proof that work had started on this project.  Mr. Atkinson said that there was one shoring permit that was for the entire perimeter of the 80 Natoma site that had begun a few days before the site permit was issued.  Mr. Atkinson said that he wanted to state that Myers Development had only one foundation design and that was for a foundation mat on top of piles and other foundations designs were only discussed, so the BIC should not take into account potential designs not even submitted.  Mr. Atkinson discussed a permit that was taken out for a parking lot and explained that this was a temporary parking lot because nothing had been built above ground.  Regarding Prop H, Mr. Atkinson stated that Prop H had a specific route in a draft EIR that was not intersecting the 80 Natoma site.  Mr. Atkinson said that Myers Development used due diligence in its dealings with DBI and said that there is always a lot of confusion with a project of this size.  Mr. Atkinson said that he wanted to note that construction was stopped due to litigation on the project with contractors, lenders and bankruptcy procedures and said that the project developer should not be punished for this interruption, as the intent was that the project would always move forward.  Mr. Atkinson pointed out that this has been DBI’s practice in the past regarding large projects.

Mr. David Schoenbrunn introduced himself as President of TRANSDEF and said that there was an admission that staff considers this permit to have commenced work based on work done before the permit was issued under another permit.   Mr. Schoenbrunn stated that this was a change to the Building Code and said that no work could start under a site permit without knowing what was going to be built.  Mr. Schoenbrunn said that TRANSDEF had no problem with 80 Natoma being built in conjunction with a rail tunnel and stated that the second EIR for Prop H shows 80 Natoma as part of the rail right of way and that Prop H stated that no project should hinder or make more costly the building of the TransBay terminal.   Mr. Schoenbrunn said that TRANSDEF strongly believed that the 2004 permit was issued in error and urged the Commission to revoke it.

Ms. Alice Barkley said that the permits issued by the Planning Department and as discussed by the Commission talk about time and when work must begin.   Ms. Barkley stated that when a permit is challenged, it is the permit that is challenged and it does not talk about finances or anyone else taking over; that person must comply with the law.  Ms. Barkley said that Prop H looks at specific language; the Commission is in charge of administrating the Building Code and the Code says that every permit issued by the Director under the Building Code, unless an extension is granted by the Director, shall expire.  Ms. Barkley said that the two permits might have been extended, but the work done under the $3M that was talked about should not qualify as work started because this underpinning work was done before the site permit was issued and work was allowed to go forward before it was plan checked.  Ms. Barkley stated that these two ground injection permits were only for $25,000 each and there was another permit to go 12 feet below grade in the amount of $35,000.  Ms. Barkley said that there was testimony saying that the developer put in soldier beams going all the way down to 100 feet and asked if the BIC and DBI were saying that work like that could be done illegally, without a permit and no one was going to do anything about it.  Ms. Barkley urged the BIC to look at the sequence of events and said that there was a series of permits, but no permit for the soldier beams.  Ms. Barkley said that TRANSDEF was asking that if the BIC found that no work had started, as required by the Building Code, under the site permit then a new building permit would be required.  Ms. Barkley said that her client was not asking DBI not to issue a new permit, or not asking to prevent this project from being built in the future, but is asking that everyone follow the law.  Ms. Barkley said that it was simple to look at the law and apply it.  Ms. Barkley thanked the Commission.

President Santos stated that this was the conclusion of the presentation by both parties and public comment and asked if any of the Commissioners had questions for staff or the appellants. 

Vice-President Hood said that she would like to break the issues into two pieces as indicated by Director Chiu’s June 18^th letter that continued the Stop Work Order.  Vice-President Hood said that the two issues were when the permit expired and the constructions of foundations.  Commissioner Hanrahan said that she thought there were other issues to be considered.  Vice-President Hood said that Prop H might or might not be an issue and said that she wanted to discuss the foundation as reported on by Dr. Yap.

Vice-President Hood stated that Director Chiu wrote a letter stating that the permits had expired, but said that it appeared based on the testimony given and the August 20^th letter written by Acting Director Hutchinson, that after further research the Department determined that work was found to be started.  Vice-President Hood asked if that was correct.   Mr. Hutchinson stated that he spoke with Director Chiu and conferred with Deputy City Attorney Judy Boyajian, Assistant Director Lee, Assistant to the Director Ken Harrington, Tom Hui and Hanson Tom to question if it was correct to suspend the permit.  Mr. Hutchinson said that Director Chiu had stated that due to ninety days of inactivity the permits were suspended, but Director Chiu also stated that there was a preponderance of evidence that work had started.  Mr. Hutchinson said that in consulting with staff he was then able to move forward and determine that the 2004 permit was valid and had been filled out correctly on a form 3-8, altered site permit and though the two permits had expired, work had started.  Vice-President Hood asked what the date of the altered site permit was.  Mr. Hutchinson said that it was filed in 2003 and issued March 25, 2004.  Mr. Hutchinson said that he wanted to make it clear that the decision that work started was made after much discussion with the Deputy City Attorney and senior staff to determine that this is the way the Department handled this issue over the years on other projects. 

President Santos asked about structural documentation and Ms. Barkley’s statement that there was no valid permit for the soldier piles going down 100 feet.   Acting Deputy Tom Hui said that he could not give specific details because there were some 37 permits, all suspended, some were approved and some were under revision.  Mr. Hutchinson said that because of a pending lawsuit no information could be given.  President Santos asked Mr. Hui if he was the Structural Engineer who reviewed the shoring design.  Mr. Hui answered that it was originally K.K. Chiu, who had since retired from DBI, and then Mr. Hui later reviewed it.  Vice-President Hood said that she did not believe that going beyond the scope of the permit was one of the things that the Commission was being asked to look at today and perhaps this was something that the Acting Director could look into.  Vice-President Hood stated that it appeared to her that the altered site permit that was issued on March 25, 2004 set up a new site permit and there was a time when that could have been appealed, but it stayed.  Vice-President Hood said that the subsequent underpinning was typical in San Francisco as starting work on a project. 

Vice-President Hood said that she wanted to make a motion with respect to the time expiration of the permits.   Vice-President Hood stated that the permits had been renewed through the alternate site permit dated March 25, 2004, therefore work did legally start when the adjacent unpinning was done, thereby the permit was still in effect and is still in effect today. Commissioner Hanrahan seconded the motion.

Commissioner Fillon said that he was concerned that the Commission not exceed its legal jurisdiction.   Vice-President Hood said that this would just be a part of the Commission’s findings.  Deputy City Attorney Catharine Barnes suggested that this be voted on as a finding and said that she could help by drafting findings from this meeting to show the concerns of the Commission, but the final act of the Commission would be to grant, deny or modify the decision of the Director of Building Inspection.  Vice-President Hood said that she agreed that this should be in the form of a finding.

The Commission voted as follows:

The motion carried by a vote of 5 to 1.

RESOLUTION BIC NO. 047-004

Vice-President Hood said that another issue was raised in Director Chiu’s June 18^th letters, which were concerns about the geotechnical issues.  Vice-President Hood stated that Dr. Yap had been very helpful and said that she was impressed by the qualified Peer Review Panel that was in place and said that the Panel’s findings should be microfilmed and filed with the permit. 

Vice-President Hood quoted from Prop H and said that this issue should have been dealt with in the Environmental Review process and also in the Department of City Planning, but for some reason it was not taken into consideration.  Vice-President Hood said that she believed that Prop H was relevant.  Vice-President Hood said that thru further pursuits in the court the developer would probably be told that Prop H was not enforceable or that the land could be taken by eminent domain.  Vice-President Hood said that Dr. Yap explained that there was an alternative available that would not exclude the CalTrain tunnel and said that she thought that this would be the best alternative, but questioned who would pay for that.  Vice-President Hood said that she believed that Prop H did apply and that the foundation should be modified to accommodate the tunnel.  President Santos asked Ms. Barnes if the Commission should discuss Prop H as part of the decision making process along with the technical issues.  Ms. Barnes said this did not have to be part of the decision making process because all the Commission had to do was to uphold, deny or modify the decision of the Director, but this was a De Novo hearing and the Commission could uphold, deny or modify the decision based on the Director’s letter or for any other reason.  Ms. Barnes said that one of the reasons might be that the Commission believes that Prop H has some bearing on this case.  Ms. Barnes stated that the Department has suggested that the Commission get an opinion from the City Attorney about Prop H and said she would be happy to write an opinion on that, but did not have one today.  President Santos said that Prop H had to do with the Environmental Review Process and the Planning Department and Planning gave the ok to 80 Natoma.  Ms. Barnes stated that Prop H identified a route with a specific right-of-way and the question is whether that route has anything to do with 80 Natoma.  Ms. Barnes said that whether it does or not there is a question as to whether this would enable the BIC to address that route in any land entitlement decisions on this Board.  Ms. Barnes said that she did not know if Director Green of City Planning had considered Prop H.  Vice-President Hood said she was only concerned with what the BIC had to do as required by law and said that she thought that Prop H was a concern because Profession Yap testified that the right-of-way goes under one-half of the tower and there were alternative foundations recommended to deal with that and other technical issues.  Vice-President Hood said that she would like to uphold Director Chiu’s decision based on these geotechnical issues.  Commissioner Guinnane said that he totally disagreed because the permits were approved before Prop H came before the voters.  Vice-President Hood said that the alternate site permit was dated March 25, 2004.  Commissioner Guinnane said that he did not believe that Prop H applied here.  Vice-President Hood stated that they had a difference of opinion and Commissioner Guinnane said that it was not the first time.  Commissioner Hanrahan said that the broad language of Prop H said that the tunnel would be built wherever feasible. 

President Santos said that the BIC could not assume that Director Green took Prop H into consideration in renewing the site permit and asked Ms. Barnes if the BIC could ask Mr. Green if he had.   Ms. Barnes said that the Department could continue this issue and ask Mr. Green or could ask for an opinion from the City Attorney.  Vice-President Hood said that this was before the BIC right now and said that she felt very strongly that Prop H did apply to the BIC.  Commissioner Fillon said that he was not 100% convinced whether Prop H did or did not apply, but said that he thought that this conflict should have been resolved during the Planning process as it was not up to the BIC to deal with land issues.  Vice-President Hood said that the Proposition did not refer to a particular agency.  Commissioner Fillon stated that it was not up to DBI staff to know about Prop H and said that DBI staff assumes that Planning has taken care of land use issues before passing the permit onto DBI.  Commissioner Hanrahan said that she thought that it was the BIC’s responsibility to consider this issue and not just pass over it because another City agency did so.  Vice-President Hood agreed. 

Commissioner Guinnane said that two of the permits had work started on them before Prop H went to the voters.   Ms. Barnes said that the entitlements that the property owner had before Prop H went to the voters would remain in effect and would be uninfluenced by Prop H and said that was one of the reasons she was urging the Commission to let her write some findings.  Vice-President Hood said that she felt that the addenda that was issued in 2004 would have to adhere to the current law and that would include Prop H.  Mr. Hutchinson stated that the new addenda would have to adhere to the current Building Code and stated that this project is still in a state of flux as there is no final design.  Mr. Hutchinson stated that the Peer Review Panel of very qualified people was trying to accommodate both the building and the trains.  Acting Deputy Director Tom Hui came forward to say that the Building Department did not consider Prop H and did not have the expertise to do so, as that was a Planning issue.  Vice-President Hood stated that Prop H was a very unusual ordinance because typically the ordinance spells out who is responsible for carrying out the ordinance, but in this case it doesn’t, so there is an unusual burden. 

After much discussion it was decided to continue this item in order to get an opinion from Deputy City Attorney Barnes and to have her come up with findings regarding entitlements and the effect of the entitlements on this project.   Ms. Barnes said that this opinion would be given to the Commission in confidence.  Commissioner Fillon said that he was in favor of getting this opinion because of the danger of the Commission and the Department getting into legal trouble.  Commissioner Guinnane asked how long it would take to get that opinion.  Ms. Barnes asked when the next meeting would be.  Secretary Aherne said that the next meeting would not be until September 20, 2004 because September 6, 2004 was a holiday.  Ms. Barnes said that she could have the opinion ready for the September 20, 2004 meeting and would have it to the Commission by September 15, 2004

President Santos made a motion, seconded by Commissioner Guinnane to continue this item until the meeting of September 20, 2004 or a later meeting if findings are not available by September 15, 2004.   The motion carried unanimously. 

RESOLUTION BIC NO. 048-004

Commissioner Hanrahan said that there was some public discussion in the newspapers about a Mayor’s initiative involving DBI regarding her neighborhood, the Bayview/Hunter’s Point area and abandoned buildings.   Commissioner Hanrahan asked who the staff person at DBI was who was assigned to this task and if she could have a report on this item.   Acting Director Hutchinson said that the Director, who was on vacation, had attended a meeting the previous week and said he would be happy to report back.  Commissioner Hanrahan said that she was particularly interested in her neighborhood and avoiding foreclosures.  Commissioner Hanrahan stated that she wanted DBI to be sympathetic to the people in Bayview/Hunter’s Point who might be having problems with keeping up their property.  Mr. Hutchinson said that he hoped that Department staff was sympathetic to all neighborhoods and said that he thought the evidence that they were was that there were not a lot of citizens coming before the Commission to complain.  Commissioner Hanrahan said that she was not saying that there was anything wrong, but would just like this item put on a future agenda. 

Mr. Joe O’Donoghue of the Residential Builders Association said that he had been to a meeting the previous week regarding Commissioner Hanrahan’s statements.   Mr. O’Donoghue stated that the Mayor had made statements that were inconsistent and once again the Mayor is running government though press headlines with no consultation with the various departments involved.  Mr. O’Donoghue said that it was as if the Mayor was running for reelection by talking about reducing crime and drug dealing in the Bayview/Hunter’s Point area.  Mr. O’Donoghue said that Housing or Building Inspectors could not reduce crime through Code Enforcement, just as land use policies were used in planning to stop growth in this City and now there is a housing disaster; it is just confusion and misconception.  Mr. O’Donoghue said that he thought that Commissioner Hanrahan had raised a very good point, as the Mayor should send over his program for the Commission to see if it makes sense.  Mr. O’Donoghue said that the bolts and nuts are coming off the wheels in this City, as no one is in charge and stated that legal authorities cannot do illegal things against homeowners.

Commissioner Hanrahan said that she wanted to explain to the Commission why she was so interested in this issue.   Commissioner Hanrahan said that she was deeply concerned about the level of violence in her neighborhood, which has the highest rate of homeownership in the City.  Commissioner Hanrahan said that she wanted to preserve the character and integrity of this predominantly black community.  Commissioner Hanrahan stated that many people are subject to losing their homes and she wanted to know what DBI is doing in its capacity to prevent that and what the Mayor is asking, as she is deeply concerned about her community.

Public Comment:  The BIC will take public comment on matters within the Commission’s jurisdiction that are not part of this agenda.

Mr. Rolfe said that he thought that it was a good move for the Commission to take 80 Natoma into consideration and suggested that the Commission co-ordinate with the S.F. County Transportation Authority who is studying the alleged solution to 80 Natoma.   Mr. Rolfe said that the approved and certified EIR for the TransBay terminal was issued for comment in October 2002 and no comment was offered.  Vice-President Hood reminded Mr. Rolfe that this item was for comment on items that did not appear on the agenda.

SUMMARY OF REQUESTS BY COMMISSIONERS

Deputy City Attorney Catharine Barnes to submit findings to the BIC on 80 Natoma.

Pages 14-15

Deputy City Attorney Catharine Barnes to give an opinion to the BIC on 80 Natoma and Prop H.

Pages 15-17

Future Agenda Item – Update on Mayor’s Task Force regarding Bayview/Hunter’s Point and DBI involvement. – Commissioner Hanrahan

Pages 17-18