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
Philip Ting, Commissioner
Criss Romero, Commissioner

Bobbie Sue Hood, Vice-President
Roy Guinnane, Commissioner
Noelle Hanrahan, Commissioner, excused

Ann Aherne, Commission Secretary

D.B.I. REPRESENTATIVES:

CITY ATTORNEY’S OFFICE REPRESENTATIVES:

Jim Hutchinson, Acting Director
Amy Lee, Assistant Director
Tom Hui, Acting Depurty Director
Rosemary Bosque,Chief Housing Inspector
Sonya Harris, Secretary

Catharine Barnes, deputy City Attonery

President Santos said he had no announcements, but stated that he wanted to move some items around on the agenda and was going to to begin with Item #8.

Mr. Joe O’Donoghue of the Residential Builders said that the Department, under Rosemary Bosque, did an incredible job and went up against bullies, the AIMCO Corporation.  Mr. O’Donoghue stated that AIMCO Corporation hired a major litigant firm out of Oakland and throughout the United States this was the first time that they were challenged.  Mr. O’Donoghue said that AIMCO figured that they would win in this City as they had done elsewhere because they thought that the resources that they had would overcome the meager resources of the Department.  Mr. O’Donoghue said that because DBI had millions of dollars in resources they were able to match dollar for dollar the bullies and as a result of that the settlement was made.  Mr. O’Donoghue said that this is all the more reason that the surplus that DBI has accumulated through efficiency over the years should stay in this Department.  Mr. O’Donoghue said that without that surplus bullies such as AIMCO would come in and dictate and abuse tenants.  Mr. O’Donoghue said that Melvin Belli was successful, not because he was brilliant, but he was brilliant in having the facts and facts win cases.  Mr. O’Donoghue said that John Kerley with the help of the staff had assembled facts that made the case a winner because the right person with knowledge of the construction industry was able to give the attorneys the facts, which they could then litigate.  Mr. O’Donoghue stated that the seven hundred or more tenants at AIMCO benefited because the conditions they were living in were atrocious and AIMCO had the money needed to do the repairs, but were refusing to do it.  Mr. O’Donoghue said that with the creation of this Commission, Building and Housing Inspectors were brought in under the model of General Motors, not because it was something that was read about in a book, but because the founders knew how a corporation functioned.  Mr. O’Donoghue said that the model dictated that when Housing Inspectors were brought in they were made as good as Building Inspectors and said that Housing Inspectors today are much more able and much more informed to look at a problem and assess under the Code.  Mr. O’Donoghue said that this Department needs to be looked at more as a model department and used elsewhere.  Mr. O’Donoghue quoted “Lives of great men all remind us that we can make our lives sublime and departing leave behind us footprints on the sands of time.”  Mr. O’Donoghue said that John Kerley had left footprints on the sands of time, not Dennis Herrera and the City Attorney’s Office, or not Sophie Maxwell, but the hardworking employees of DBI. 

FINDINGS AND DECISION

80 NATOMA CONSOLIDATED APPEALS

1.

In February 1993, the San Francisco Planning Commission approved a conditional use permit and issued a Section 309 determination to develop an approximately 48 story, 475 foot tall tower containing roughly 500 residential units and 10,000 square feet of retail space, located at 80 Natoma Street in San Francisco (“Project”).

2.

In November 1995 and April 1998, the San Francisco Planning Commission extended the time to obtain a site permit to February 1998 and February 2001, respectively.

3.

In September 1998, the owners of the property applied for a site permit for the Project.  In November 1998, the Department of Building Inspection (“DBI”) issued underpinning permits Nos. 9823402 and 9823403 under adjoining addresses 90 Natoma and 83 Natoma, respectively, and permit No. 9821707 under the Project address for a temporary shoring and soil-cement mix wall for the Project.  In February 1999, DBI issued site permit No. 9817951(S).  In May 1999, DBI issued alteration permit 9904253(S) revising site permit No. 9817951(S) (“the 1999 Permits”)

4.

In early 1999, Swig Burris Equities, LLC (“Swig”), the then-Project owner, commenced work on the Project by constructing a sub-surface soil-cement mix wall for the project which the current Project owner alleges cost approximately $2.7 million.  BIC does not make any finding as to the specific cost of this work.  DBI Acting Director James Hutchinson credibly testified that, as a matter of department custom, DBI documents certain work, such as the underpinning and shoring in this Project, under separate permits rather than site permit addenda.  DBI considers such separately permitted work as work “started” on the project within the meaning of the SF Building Code.

5.

In April 2001, The Prudential Insurance Company of America (“Prudential”) filed a federal lawsuit against Swig seeking, among other things, judicial foreclosure of the Project.  As a result of the federal lawsuit, Prudential foreclosed and took possession of the Project.  The federal court action terminated in May 2002.

6.

Myers Natoma Venture, LLC, acquired the Project on March 24, 2004.  Myers Development Company (“MDC”) is the developer of the Project.

7.

MDC redesigned the Project.  The design approved under the 1999 Permits included a 48-story, perforated steel shear wall tower, with four levels of below-grade parking.  The MDC design includes a 48-story, concrete shear wall tower, with two below-grade levels, supported on a concrete mat with shallow piles that do not reach bedrock.  The redesigned tower is taller than the Building Code height approved for concrete shear wall structures and will be one of the tallest and heaviest buildings in the City.

8.

On March 5, 2004, DBI issued an altered site permit (“2004 Permit”) for the redesigned Project as well as a revised shoring permit, a street space permit, and a revised shoring/excavation permit.

9.

On March 23, 2004, DBI approved MDC’s proposed addenda schedule under the 2004 Permit for the pilings, foundation to grade, structural, architectural, and Final—MEP, Life Safety including sprinklers.

10.

DBI convened a Peer Review Panel ("PRP") of geotechnical and structural engineers to evaluate the Project because the proposed concrete shear wall tower was higher than allowable under the Building Code.  The PRP issued a report on April 2, 2004, giving "provisional approval" of "pile installation," and noting several unresolved issues concerning the settlement of the Tower, the foundation and pile design, and the design of the connection between the piles and the mat foundation.

11.

On April 8, DBI issued Addendum 1 to the 2004 Permit for installation of piles

12.

In May 2004, MDC began installing piles at the site.  MDC continued installing piles until June 7, when DBI suspended the 2004 Permit and all other Project permits.

13.

In a letter dated May 25, 2004, Transportation Solutions Defense and Education Fund (“TRANSDEF”) urged DBI to issue Stop Work Orders and revoke the permits on the Project because, according to TRANSDEF, the 1999 Permits expired and therefore the 2004 Permit was invalid because it was based on the 1999 Permits.  In a separate claim, the letter alleged that the 2004 Permit had been issued in violation of Proposition H.  The Building Inspection Commission (“BIC”) placed the TRANSDEF letter on the agenda for its duly noticed June 7, 2004 meeting as Correspondence Agenda Item 12(g).

14.

At the June 7, 2004 meeting, representatives of TRANSDEF argued that the 2004 permit was invalid under the Building Code and Proposition H, and also raised concerns about the adequacy of soils testing and the projected building settlement.  TRANSDEF submitted a written permit chronology that suggested that no work had occurred on the Project and a written report from MIT Professor Charles C. Ladd, in consultation with MIT Professor Andrew Whittle, that contradicted the building settlement estimated by Treadwell &Rollo, MDC’s engineers, and the PRP.  The Ladd report concluded that the tower’s likely settlement under the center of the mat foundation would be 9 inches +2.5 inches.  Professor Ladd also concluded that the settlement under the edges of the mat would be significantly smaller than the settlement at the center, resulting in differential settlement.  MDC and PRP calculated the likely settlement at 2-3 inches, with no significant differential settlement.

15.

After the meeting, DBI suspended the permits for the Project for two weeks to allow DBI to investigate the validity of the 2004 Permit.

16.

Thereafter, DBI received geotechnical and structural reports that DBI reasonably believed called into question the factual assumptions it relied upon in approving the piling addendum.  For example, in a report dated June 2, 2004, University of Illinois at Urbana-Champaign Professor Youssef Hashash concluded that the "Natoma Tower will experience large settlements" that "may approach 9 inches." Professor Whittle’s separate report dated June 11, 2004 concluded, "The center of the mat (F) settles 7.8" at the end of construction with a long-term settlement of 11".  This is comparable to the upper limit of mat deformations predicted by Prof. Ladd (9.0 +2.5")."   Professor Whittle also predicted differential settlement of the mat foundation. In a June 24, 2004 memo to the PRP, Shah Vahdani, a geotechnical engineer and member of the PRP, estimated that settlement of the mat foundation would be "on the order of 5 inches."  Mr. Vahdani also stated:  "The current foundation design is appropriate from a geotechnical engineering stand point provided that the design issues discussed in this section are fully addressed."  Mr. Vahdani 's memo discussed a series of design issues that had not yet been addressed.  Finally, Mr. Vahdani stated:  "Significant differential settlement may occur between the tower and the parking structure.  The magnitude of differential settlement should be carefully evaluated, and the differential settlement be accommodated at the connection points."

17.

On June 17, 2004, DBI advised the Planning Department that DBI had determined that the 1999 permits were null and void because a prior owner abandoned or suspended development for more than ninety (90) days in violation of San Francisco Building Code Section 106.4.  DBI asked the Planning Department to advise DBI whether the Planning Department’s approval of the 2004 permit remained valid in light of DBI’s determination.

18.

On June 18, 2004, DBI suspended the permits for the Project until further notice pending (1) a response from the Planning Department about the validity of the 2004 permit, and (2) resolution of the geotechnical issues and their impact on the current pile design.  DBI attached Professor Ladd’s June 2, 2004 letter to its notice.  MDC appealed DBI’s indefinite suspension of its permits, but reserved its right to contest the BIC’s jurisdiction over the controversy.  TRANSDEF appealed DBI’s failure to revoke the 2004 permit.

19.

BIC consolidated  TRANSDEF’s appeal and MDC’s appeal and, pursuant to Rule 7.02(c), scheduled them for hearing on August 16, 2004 (“consolidated appeals”)

20.

On July 9, 2004, DBI wrote to MDC setting forth seven separate issues of concern related to soils analysis and foundation design (plus two which related to solutions to accommodate a train tunnel, an issue which is not relevant to the suspension of the Project permits and therefore not before the BIC) as well as its concern about a new proposed revision of the pile design to remove most of the rebar from the interiors of the piles, and weld steel caps to the top of the piles for attachment to the foundation mat.  MDC disputed the factual basis for each of the concerns in a letter dated July 14, 2004.

21.

On July 14, 2004, the Planning Department issued a letter confirming that its prior approval of the 2004 permit remained valid

22.

On August 16, 2004, at the request of MDC and with the agreement of TRANSDEF, BIC continued its hearing of the consolidated appeals to August 30, 2004.  BIC also directed DBI staff to determine the validity of the 2004 Permit by Friday, August 20, 2004.

23.

On August 20, 2004, DBI issued a letter determining that the 2004 Permit is valid based, among other grounds, on a finding that Swig had timely commenced construction on the Project within the meaning of the Building Code.

24.

On August 30, 2004, BIC held a special meeting to hear the consolidated appeals. In response to BIC questions, Dr. Hadi Yap, Structural Engineer for Treadwell & Rollo credibly testified that the pile supported mat foundation proposed for the project was not unique in San Francisco, being, among others, the structural design of the buildings known as Two and Three Embarcadero.  Dr. Yap also credibly testified that the pile design could be augmented to address any error in the load estimate for the Project tower. BIC closed public testimony on the consolidated appeals and continued its deliberations until September 20, 2004, and then to September 24, 2004, pending the issuance of an opinion from the City Attorney on the applicability of Proposition H to the validity of the 2004 Permit.

25.

On September 24, 2004, the BIC voted 5-2 in favor of a motion lifting the suspension of the 2004 Permit and all other Project permits, on the condition that DBI amend the Project addenda schedule to require approval of all of the Project structural elements, including the foundation, superstructure and podium, at the same time rather than incrementally, and instructed the City Attorney to prepare written findings and decision for BIC approval at a future meeting.

26.

NOW THEREFORE, we hereby find, conclude and determine, on the basis of the above

findings and the other facts, evidence, law and argument presented to us in connection with these consolidated appeals, that the suspension of the 2004 Permit and all other Project permits is lifted and that MDC may resume construction at the Project in accordance with current piling addendum approval, on the condition that DBI shall amend the Project addenda schedule and review and approve as a single step in a single future addendum, the complete Project structural design, including the foundation, superstructure, podium and any additional structural elements of the Project.  All Stop Work Orders for 80 Natoma are hereby LIFTED.

The undersigned hereby certify that the Building Inspection Commission adopted the above findings and decision at its regular meeting of October 18, 2004.

Commissioner Guinnane submitted the following findings to the Commission:

FINDINGS

80 NATOMA CONSOLIDATED APPEALS

BUILDING INSPECTION COMMISSION

1. These consolidated appeals concern property located at 80 Natoma Street, which Myers Natoma Venture, LLC owns and Myers Development Company (collectively, “MD”) is developing.  MDC and Transportation Solutions Defense and Education Fund (“TRANSDEF”) have appealed various actions of the Department of Building Inspection (“DBI”).

2.       In February 1993, the San Francisco Planning Commission approved a conditional use permit and issued a Section 309 determination to develop an approximately 48 story, 475 foot tall tower containing roughly 500 residential units and 10,000 square feet of retail space, at 80 Natoma Street.

3.       In November 1998, DBI issued underpinning permits for 90 Natoma and 83 Natoma, Nos. 9823402 and 9823403, respectively, and permit No. 9821707 for 80 Natoma, allowing construction of a temporary shoring and soil-cement mix wall at the site.  In February 1999, DBI issued site permit No. 9817951(S) and in May and August 1999 issued site permit amendments (“the 1999 Permits”).

4.       On March 5, 2004, DBI issued an altered site permit (“2004 Permit”) as well as a revised shoring permit, a street space permit, and a revised shoring/excavation permit for the 80 Natoma project.

5.       On March 23, 2004, DBI issued an addenda schedule under the 2004 Permit for the pilings, foundation to grade, structural, architectural, and Final—MEP, Life Safety including sprinklers for the 80 Natoma project.

6.       On April 8, DBI issued Addendum 1 to the 2004 Permit, which permits the installation of piles.  In May 2004, MDC began installing piles at the site pursuant the first permit addendum.

7.       On June 7, 2004, BIC heard public testimony regarding the 80 Natoma permits at its regularly scheduled meeting.  After the meeting, the Department of Building Inspection (“DBI”) suspended the 80 Natoma permits for two weeks (“Stop Work Order”) in order to investigate the validity of the permits.

8.       On June 17, 2004, DBI wrote the Planning Department stating that the 1999 permits were null and void.  DBI continued the pending Stop Work Order indefinitely.  The next day, June 18, 2004, DBI wrote MDC reaffirming the continued permit suspension pending a response from the Planning Department regarding whether in light of this conclusion the Planning Department approval of the 2004 Permit remained valid.

9.       On July, 14, 2004, the Planning Department issued a letter stating that its prior approval of the 2004 permit remained valid.

10.   On August 16, 2004, the BIC continued its hearing of the consolidated appeals to August 30, 2004.  BIC also directed DBI staff to determine the validity of the 2004 Permit by Friday, August 20, 2004.

11.   On August 20, 2004, DBI issued a letter determining that the 2004 Permit is valid based on a finding that construction had timely commenced on the Project within the meaning of the Building Code.

12.   On August 30, 2004, BIC held a special meeting to hear the consolidated appeals.  BIC determined and found (1) that it had jurisdiction over the consolidated appeals; (2) that the underpinning and shoring work done in 1999 under permits Nos. 9823402 and 9823403 listed for 90 Natoma and 83 Natoma, and permit No. 9821707 listed for 80 Natoma constituted “start of construction” under the San Francisco Building Code and, therefore, (3) the 2004 Permit was valid based on Building Code consideration.

13.   BIC continued the August 30, 2004 hearing on the consolidated appeals until September 20, 2004 and then to September 24, 2004, pending the issuance of an advisory opinion from the City Attorney on the applicability of Proposition H to the validity of the 2004 Permit.

14.   On September 24, 2004, the BIC determined and found that Proposition H does not require the BIC to continue the suspension of, or revoke, the 2004 permit.

NOW THEREFORE, we hereby find, conclude and determine, on the basis of the above findings and the other facts, evidence, law and argument presented to us in connection with this appeal, that the 2004 Permit is VALID and supercedes the 1999 Permits, and that MDC may resume construction at the Project in accordance with and to the extent of current piling addendum approval.  All Stop Work Orders for 80 Natoma are hereby LIFTED.

The undersigned hereby certify that the Building Inspection Commission adopted the above findings at its regular meeting of October 18, 2004.

Commissioner Ting asked about the difference in the two findings.  Deputy City Attorney Catharine Barnes explained that the conditions that the Commission set at the last meeting in order to lift the Stop Work Order were not included in Commissioner Guinnane’s findings. Ms. Barnes said that she did not think that there was any conflict with the Commissioner’s findings, but stated that she did not think that there was enough in them to satisfy a judge. Ms. Barnes said that she had not done a side-by-side comparison of the two sets of findings.  Commissioner Ting said that he had done a comparison and the items that were missing in the shorter version were items 2, 4, 5, 10, 12, 13, 15, 16, 18, 19, 20, 25 and 26.  President Santos asked Commissioner Guinnane about his abridged version of the findings.

Commissioner Guinnane said that in looking back at public testimony he felt that this hinged on Prop H and did Prop H apply.   Commissioner Guinnane stated that it was always his position that Prop H did not apply.  Commissioner Guinnane said that he thought that his findings covered all of the issues that needed to be identified.  Vice-President Hood asked the City Attorney why she felt that the findings submitted by Commissioner Guinnane were insufficient.  Ms. Barnes said that the Commission made a decision that the work order should be lifted and asked why the Commission made that decision.  Ms. Barnes said that in her findings she had items about what the Department knew at the time and it was that the BIC felt that at the time the Department acted reasonably, but subsequently the BIC changed its mind and voted differently and that was based on more testimony and some other evidence.  Ms. Barnes said that she did not feel that this aspect was in the shorter findings.  Ms. Barnes said that the Commission needed to explain what it did or else in her view there were no findings.  Vice-President Hood said that she did not see any problem with including the additional items, as it did not change the meaning of what Commissioner Guinnane had done.  Commissioner Guinnane said that he stood by his comments, but said that if Vice-President Hood did not like his findings then she should not vote on them.

Commissioner Romero asked if these findings would be used if this case were to go before a court.  Ms. Barnes said that if this was appealed it would be appealed by a writ to the court and the court would look back to what and why the Commission acted.  Vice-President Hood said that she believed that the more detailed findings were more complete.

Vice-President Hood said that she would move to adopt the findings that included 38 items that were eight pages in length.

President Santos asked for public comment. 

Mr. Steve Atkinson of Steefel, Levitt & Weiss said that he was speaking on behalf of Myers Development and said that his firm had originally submitted a draft set of findings for the September 24, 2004 hearing.  Mr. Atkinson stated that after that hearing Deputy City Attorney Barnes took comments from various parties and prepared one of the sets of findings that was before the Commission.  Mr. Atkinson said that he appreciated that Ms. Barnes had removed several of the provisions from City Attorney Schwartz’s findings that they considered objectionable he still thought that there were a number of problematic statements.  Mr. Atkinson said that he disagreed with #26, sub 3 and disagreed with the condition that the addendums be done all at once.  Mr. Atkinson said that he believed that Commissioner Guinnane’s findings were adequate and asked that the Commission adopt those findings. 

Commissioner Guinnane said that he had two issues, one being item #26 of the City Attorney’s findings.  Commissioner Guinnane stated that there never was a conclusion made and said that there needed to be clarification on the addendums.  Commissioner Guinnane said that the addendums were not for the entire building, 100%, but it was from the top down back to the load structure only, the shell and the weight.  President Santos said that was correct and that structurally the Commission would request the foundation plan and all of the reactions and forces that would be generated by any analytical model that the structural engineer might use, but it would not be to demand a full set of structural drawings.  Mr. Atkinson said that was one of MDC’s major concerns.  Commissioner Guinnane said that as a Commissioner he did not believe that the City acted reasonably here as he did not feel that MDC got a fair shake.  Commissioner Guinnane said that there was testimony put forward that the building could settle 11 1/2/” and there was other testimony that it would settle 1 ½”.  Commissioner Guinnane said that this argument had never been settled and said that he felt that individuals wanted to cover themselves for the taking of this property.  Vice-President Hood said that this was Commissioner Guinnane’s own judgment and said that she did not agree with Commissioner Guinnane nor did she think that the majority of the Commission agreed with him.  Commissioner Guinnane said that was his own opinion. 

Mr. Atkinson asked that the Commission consider the next item in order to remove some of the cloud over the Myers Development team.  Mr. Atkinson thanked the Commission.

Mr. Norman Rolfe said that he was speaking for San Francisco Tomorrow and asked why all of this was before the BIC right now.  Mr. Rolfe said that the Board of Supervisors voted unanimously to acquire this property.  Mr. Rolfe said that the findings make no mention of the basic problem which is tunneling under this building, when and if that would ever occur.  Mr. Rolfe stated that this was the crux of everything that was going on here and said that there was no mention of CalTrain or a high speed rail or accommodating the foundations of the building to accommodate all of that.  Mr. Rolfe said that he would suggest continuing this matter, or tabling it because it should be moot because the Board of Supervisors had voted to acquire this property. Mr. Rolfe said that if the Commission felt that they had to do something he would urge the BIC to continue this matter and revise the findings to reflect the points that he had brought up.  Commissioner Guinnane said that the City Attorney advised the Commission that if Prop H did not apply the Commission was not to consider the tunnel and that is why the findings do not talk about the tunnel or Prop H.  Mr. Rolfe said that there could be a tunnel without Prop H and said that the tunneling is the main problem going on. 

Ms. Alice Barkley said that she was representing TRANSDEF and said that she urged the Commission to adopt the City Attorney’s findings for the following reasons.  Ms. Barkley said that Commissioner Ting was correct in saying that Commissioner Guinnane’s findings were incomplete.  Ms. Barkley said that it was important that the BIC was conditioning lifting the suspension on the fact that Myers had to consolidate and file one single addendum for the whole structure.  Ms. Barkley stated that the Commission was concerned with the connection between the piles and the mat slab and those are structural reasons.  Ms. Barkley said that this decision by the BIC was critical and had to be supported by certain findings in the record otherwise it would not meet the Topango decision.  Ms. Barkley referred to paragraph 14 and 16 and said that she believed that it was essential that the City Attorney’s findings be adopted.  Ms. Barkley stated that the BIC was acting in the interests of the City and County of San Francisco as a whole; the City has been sued and this is in litigation.  Ms. Barkley said that even if her client did not instruct her to appeal the BIC’s decision the findings that the BIC would adopt will be used in other litigation.  Ms. Barkley urged the Commission to adopt the City Attorney’s findings that reflected the discussion and the record. 

Mr. Gerald Kauthan introduced himself as a registered Civil Engineer with a specialty in transportation for the last thirty-four years.  Mr. Kauthan said that last February the TransBay Authority submitted to the Developer a solution that would have allowed both projects to process.  Mr. Kauthan said that the solution was to mainly carrying the loads of the building which is roughly 13,000 lbs. per sq. ft. to rock.  Mr. Kauthan said that this solution was rejected by the Developer for one reason and one reason only. Mr. Kauthan said that this would have delayed the project for nine to twelve months to allow for design and to get the piles extended.  Mr. Kauthan said that now eight months have gone by and in the process between February and now this Developer had already cost the Trans Bay Joint Powers Authority, a public agency about $4M.  Mr. Kauthan stated that $1M had been spent on consultant fees and staff costs, but there has been about $3M associated with delay.  Mr. Kauthan said that this had already been very painful and referred to Item #26 of the findings.  Mr. Kauthan said that there was nothing in the findings that considered the TransBay project even though the Board of Supervisors had taken the property.  Mr. Kauthan said that Myers would use the reinstatement of the permit to rack up additional costs in his lawsuit against the City when it comes time for that property take. Mr. Kauthan said that he felt the same way about keeping the Peer Review Panel that it would end up costing the taxpayers on down the road.

Mr. David Schoenbrunn introduced himself as President of TRANSDEF and said that TRANSDEF filed this appeal on two grounds.  Mr. Schoebrunn said that one reason was on the applicability of Prop H and said that he believed that there was an error in the finding and decision that the BIC ultimately made, but more importantly TRANSDEF looked at that tortured interpretation of what it means to start work on the permit by starting work on other permits.  Mr. Schoenbrunn said that he thought that this was an outrageous rationalization for which there was no excuse possible. 

Mr. O’Donoghue of the Residential Builders Association said that first of all the City Attorney had done a very credible job on the findings and said that it was great having her here compared to the representation in the past.  Mr. O’Donoghue said that in terms of the findings and the context, he believed that the findings should not be the context of any case.  Mr. O’Donoghue said that the findings should be conclusions.  Mr. O’Donoghue referred to findings 14, 16 and 23. Mr. O’Donoghue said that these items talk about the suspension of a permit and that permit was suspended, but what the findings do not state is that the hearing where the permit was suspended should never have happened if the BIC was following the protocol that is followed at Planning.  Mr. O’Donoghue said that when someone comes in and an allegation is made the person against whom the allegation is made should be given the opportunity to attend the hearing so the procedure should be that before any kind of decision is made or any action is taken the parties should be notified.  Mr. O’Donoghue said that it was partly his fault because he did not speak up at the time, but the Commission did not follow the rules at the time, but that was unintentional.  Mr. O’Donoghue stated that there was a hearing where Myers and Company was sandbagged.  Mr. O’Donoghue said that evidence was presented unilaterally in which a conclusion was then based on unilateral evidence since there was nothing in the record to argue against this evidence. Mr. O’Donoghue said that the permit was then suspended for two weeks and this should be included in the findings that this was a sandbagging.  Mr. O’Donoghue said that if he were advising Myers and Company he would argue that the suspension should not have occurred to begin with until Myers and Company was afforded due process.  Mr. O’Donoghue said that he felt there was too much in the findings.

Mr. Marty Greenman said that he along with Andrew Schwartz represented the City in the Civil Right suit that has been filed by Mr. Myers and his Company.  Mr. Greenman said that litigation is not hypothetical here, but the City is actually in the midst of it and the findings are going to be the subject of review down the road.  Mr. Greenman stated that for this reason it was very important the Commission adopt correct findings.  Mr. Greenman said that if there was going to be an error it would be better to adopt findings that were more thorough than actually needed.  Mr. Greenman said that he did not think that the findings prepared by Ms. Barnes were more thorough than needed, but said that anything less would be not thorough enough.  Mr. Greenman said that Commissioner Guinnane’s findings were actually incorporated into Ms. Barnes’ findings.  Mr. Greenman compared Commissioner Guinnane’s finding #7 versus Ms. Barnes’ #14 which pertained to the June 7^th hearing in front of the BIC.  Mr. Greenman said that this was the essence of the basis for the original suspension by Director Chiu.  Mr. Greenman said that it was important the Commission establish the reasonableness of Director Chiu’s conduct and Ms. Barnes addresses the basis for that suspension in her #14, which is missing from Commissioner Guinnane’s findings.  Mr. Greenman said that practically speaking it would be easier to adopt Ms. Barnes’ findings.  Mr. Greenman said that it was important to require the single addendum given the size, the weight and the overall concern with geotechnical issues and said that it was important that the findings have the justification for that condition. 

Vice-President Hood said that she wanted to go back to her motion and said that she wanted to move that the Commission adopt the findings as prepared by the City Attorney dated October 18, 2004 with the exception on item #21 where instead of saying “on July 14, 2004” it should read “in a letter dated July 14, 2004”.   The motion was seconded by Commissioner Romero.       

Vice-President Hood said that she wanted to make it clear for the record that at the time the Director put a hold on the project she believed that it was an emergency based on the knowledge that the BIC had at the time and said she did not believe that it was done improperly.  President Santos said that at the time the Director took the action, not the Commission, to review technical issues. 

President Santos asked for a vote on the motion.  The Commissioners voted:

Commissioner Romero
Commissioner Fillon
President Santos
Vice-President Hood
Commissioner Ting
Commissioner Guinnane

Yes
Yes
Yes
Yes
Yes
No

The motion carried by a vote of five to one.

RESOLUTION NO. BIC 059-004

Commissioner Fillon
President Santos
Vice-President Hood
Commissioner Ting
Commissioner Guinnane

Yes
Yes
No
Yes
Yes

RESOLUTION NO. BIC 060-004

Review and approval of the minutes of the August 16, 2004 meeting.

RESOLUTION NO. BIC 061-004

SUMMARY OF REQUESTS BY COMMISSIONERS

Changes to be made to Findings prepared by the City Attorney, dated October 18, 2004. – Vice President Hood

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