Friday, August 17, 2012

Planning Commission rolls over for greedy UC

Yesterday the Planning Commission unanimously approved UC's rip-off of the Extension property on lower Haight Street. The property has been zoned for "public use" for more than 150 years, but the city is now allowing UC to build a massive housing development there that will bring 1,000 new residents to a neighborhood a block away from the chronic traffic jam on Octavia Boulevard, another progressive planning fiasco. UC has had the use of the property tax-free from the city for more than 50 years because of its education "mission."

The city is validating the previous lies by UC representatives about why it hastily closed the Extension site. The real reason: a huge housing development is much more profitable than providing college courses for working people.

This betrayal of the people of San Francisco and the public interest was endorsed by city progressives, the Planning Department, and Mayor Newsom.

Even though the neighborhood voted to oppose the project, officers of the Hayes Valley Neighborhood Association continued to endorse it.

Bevan Dufty has been particularly gutless on the UC issue from the beginning even though the property was in his district when he was a supervisor. What was evidently going on behind the scenes: he was negotiating for some of the new housing to be for gay seniors to give the project a PC patina.

Julian Davis, prog candidate for District 5 Supervisor, has also been spineless on the issue. After opposing the project back in 2004, he's been quiet about it in public since.

According to the comment below, the project has some significant legal problems before this betrayal of the interests of the people of San Francisco is complete: 

Mary Miles
Attorney at Law for Coalition for Adequate Review
San Francisco, CA

John Rahaim, Director of Planning; Rodney Fong, President and Members of
San Francisco Planning Commission
1650 Mission St., 4th Floor
San Francisco, CA  94103

DATE: August 16, 2012

RE: Hearing, August 16, 2012, ITEMS 15a and 15b on Conditional Use Permit and "In-Kind" Agreement, Case No. 2012.0033A, San Francisco State Teachers' College National Historic District, aka "55 Laguna," aka "218-220 Buchanan Street," aka University of California Extension


This is Public Comment on the above-described Items on the Agenda of the Meeting of the Planning Commission. Please assure that copies of this Comment are delivered to each Commissioner before the August 16, 2012 Commission meeting, where these items appear on the Agenda at Items 15a and 15b. I have tried to download the Agenda Packets, receiving error messages several times due to the Planning Department's broken links. Since you have made these public records unavailable, you must continue these items until such time as the public can get access to the applicable packets and other records to have the opportunity for meaningful comment under the California Environmental Quality Act ("CEQA"), the National Environmental Policy Act ("NEPA") and the National Historic Preservation Act ("NHPA"), each and all of which require decisionmaking bodies to give adequate notice of and the opportunity to review relevant documents to allow public comment on the "55 Laguna" Project. This commenter has requested notice of all actions on the above-described Project many times, receiving none. 

The "55 Laguna" Project proposes destroying a National Historic District to develop up to 500 housing units. The proposed Project has been through several redesigns, is significantly changed from previous versions that received partial environmental review in 2007, and must therefore receive further, complete environmental review under the above-described federal and state statutes.

The Commission is without authority to consider a conditional use permit and/or "in-kind" agreement as described, or to take any other action to approve the Project or any part of it, because environmental review of the Project has not been completed and publicly circulated, including a Draft Environmental Impact Statement ("DEIS") under federal statutes identifying and analyzing direct and cumulative impacts of the Project on historic resources and their significance and other significant impacts caused by the proposed Project, and a Supplemental Environmental Impact Report ("SEIR") under CEQA.  Laurel Heights Improvement Association of San Francisco v. Regents of the University of California ["Laurel Heights I"] (1988) 47 Cal.3d 376, 394.) Additionally, any development agreement must be included and analyzed in the DEIS/SEIR with public review, before issuing permits, such as conditional use permits, and before approving such agreements.  (E.g., Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 132-136.)

The entire Project must be reviewed under the National Historic Preservation Act and National Environmental Policy Act, because it proposes demolishing and altering the federally designated National Historic District known as the San Francisco State Teacher's College National Historic District. Environmental review is required both because of the status of the entire property as a National Historic District and because the proposed Project is to be federally funded in whole or part, requiring federal environmental review. No approvals, including the proposed action on a conditional use permit and "in-kind Agreement," may be lawfully adopted without first completing, publicly circulating, and fully considering a legally adequate DEIS and SEIR, which has not occurred.

The proposed Project does not involve "rehabilitation" but instead gutting, alteration, and changing the historic use from public and/or educational  to private residential, along with demolition of historic resources and buildings. The proposed Project is not a "rehabilitation" under any cognizable legal definition relevant to historic resources. The proposed Project will surely have significant impacts on the Historic District and its significance, historic use, and integrity, since the Project proposes to destroy the federally designated District, demolishing several historic structures, and destroying the historic significance of the whole Historic District, which spans 150 years of public use.  The proposed Project would transform both the physical attributes of the federally designated District, which contains several buildings of great architectural and historic merit that remain usable, and its historic significance both architecturally and as an example of publicly owned land put to public use. The District and all the buildings in it remain viable and usable for their traditional purpose and use as a public educational institution. The proposed conversion of this public land and National Historic District to private housing is incompatible both with this rich and unique history, and the proposed designs are grossly incompatible in size, height, building bulk, design, and density with both the site and the neighborhood, and thus will have direct, indirect, and cumulative impacts on historic resources, land use, open space, aesthetic resources, traffic, transit, and parking, that have not been adequately analyzed and mitigated. 

Other reasons why the Commission should not approve a conditional use permit and "in-kind" agreement include the following.

The Department's May 8, 2012 "Addendum" does not comply with the requirements of NEPA, the NHPA, and CEQA, and the Secretary of the Interior's Standards for the Treatment of Historic Properties, which do not permit the proposed Project.

The  May 8, 2012 "Addendum" has no legal status under NEPA/NHPA, and may not be used to justify any approval of the Project or any part of it.

Further, the Commission may not lawfully approve part of a project under a claimed "Addendum" to a previous Environmental Impact Report for many reasons, including but not limited to the following:
    1. Approval of a Conditional Use Permit and "in-kind" agreement for all or part of the Project or any other Project approval must be preceded by legally adequate environmental review of the whole Project, which has not occurred. Previous review under CEQA cannot satisfy the requirement of review under the NEPA and the NHPA and does not apply to the Project now proposed.

    2. The May 8, 2012  "Addendum to Environmental Impact Report" ["Addendum"] and the previous EIR fail to acknowledge the historic status and significance of the entire Project as a federally designated Historic District; fail to identify, analyze, and lawfully mitigate  impacts of the proposed Project on the historic resources and their significance; fail to identify, analyze and mitigate cumulative impacts of the proposed Project on local, regional, and statewide historic resources, and other significant impacts of the Project; and failed to propose mitigations required by law. 

    3. The "Addendum" has no legal status under NEPA/NHPA, and does not comply with those laws or with CEQA. The Project must be reviewed with a DEIS under NEPA and the NHPA, because it has changed significantly, involves federal funding, and is a National Historic District.

    4. The May 8, 2012 Addendum does not satisfy the requirements of CEQA, because: a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report and require a  DEIS under NEPA/NHPA; and b) Substantial changes have occurred with respect to the circumstances under which the Project is  being undertaken, which require major revisions in the environmental impact report and require a DEIS under NEPA/NHPA; and c) New information, which was not known when the environmental impact report was certified as complete, is now available, including the status of the Project as a federally designated National Historic District; the proposed federal funding of the proposed Project; and substantial changes to the Project description and environmental impacts. The May 8, 2012 Addendum does not acknowledge these changes and new facts, but misleads decisionmakers and the public by pretending they do not exist. In any event, an addendum has no legal status and is void and a nullity, since it cannot satisfy NEPA/NHPA and the requirement to prepare a DEIS under federal law. Further, the Addendum does not satisfy CEQA, as noted above.

    5. The  "in-kind" development agreement must receive full environmental review and public circulation under CEQA/NEPA/NHPA, because City is thereby agreeing to proceed with the Project, and approving such an agreement before preparing a DEIS and SEIR is a failure to proceed lawfully. (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 132-136.) Further, if the "in-kind" agreement proposes to collect any fees or to waive required fees from a developer for mitigation of the Project's impacts, it may not lawfully proceed without full environmental review and public circulation. (E.g., California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1030,1050.)

Other reasons why approving a conditional use permit and "in-kind agreement" would be an abuse of discretion and failure to proceed as required by law include but are not limited to:

    6. Piecemealing of approval and/or implementation of the Project and its environmental review is an abuse of discretion and failure to proceed as required by law under NEPA/NHPA and CEQA. City's approval of a certificate of appropriateness for only part of the Project, and the implication of the "Addendum" that only those parts of the Project are historic landmarks is unlawful, since the entire Project site is a National Historic District, that will be destroyed. The subsequent piecemealing of a Conditional Use Permit and "In-Kind Agreement" (developer agreement) without environmental review (apparently under the May 8, 2012 "Addendum") is also an abuse of discretion.

    7. Segmenting the Project and its environmental review into parts is an abuse of discretion and failure to proceed under the above-described laws. The Project and the State Teacher's College National Historic District include the entire property not just the three buildings proposed for drastic alteration. The environmental review that must precede any administrative approval of the Project must include the whole Project, not just part of it. Further, the "mitigations" proposed in the "Addendum" do not comply with those statutes or with the Secretary of the Interior's Standards for the Treatment of Historic Properties. This is not a "local" Project, but is of regional, statewide, and national significance. 

    8. The Project's significant impacts and cumulative impacts have not been identified, analyzed and mitigated in any environmental document. The proposed mitigations in the "Addendum" do not lawfully mitigate the impacts of the Project. Again, this is not a "rehabilitation" but is a demolition and complete change of historic use that does not comply with the requirements of CEQA/NEPA/NHPA or the Secretary of Interior's standards. 

    9. This commenter asked for but did not timely receive copies of the Commission's packet and the lead agency's files containing the plans for proposed alterations of the entire property, including the entire National Historic District, the historic buildings and other structures proposed for demolition and alteration, and records of environmental review, if any, conducted on the proposed actions. The withholding of these documents is also an abuse of discretion, since they must be included in any accurate, complete, and finite Project description in a legally adequate DEIS/SEIR, and must be publicly circulated to enable analysis of the Project's environmental impacts and meaningful participation by the public.

    10. The Project claims that it is part of the "Market and Octavia Plan" Project, but it was not reviewed or described in the environmental review documents for that Project. An SEIR is therefore required on the Market-Octavia Project to analyze the "55 Laguna" Project's impacts on the Market-Octavia area, which has not been done. Further, the Market-Octavia Project has been challenged in pending litigation and the Commission's acts are therefore not only unlawful but could be reversed. 

Even if you, as decisionmakers, claim to have received relevant materials, they have not been made available to the public. Under applicable laws, the public must be equally informed in advance of any decisionmaking process, and must be given the opportunity for meaningful review and public comment on the proposed Project. Here, you, as decisionmakers, have not received adequate environmental review documents on this Project, since a DEIS and SEIR have not yet been prepared. That essential  information must also be publicly circulated before any decision is made to approve the Project or any part of it. 

Any administrative or other approval(s) of the proposed Project or any part of it without first preparing and circulating for public review a DEIS/SEIR, would be an abuse of discretion and failure to proceed as required by law under NEPA/NHPA and CEQA, and the Secretary of the Interior's Standards for the Treatment of Historic Properties. For these and other reasons, the Commission should reject the proposed action to approve a conditional use permit and "in-kind" agreement, and should not consider such action until and unless full environmental review has first been conducted and publicly circulated in compliance with NEPA/NHPA and CEQA and full compliance has been achieved. Without compliance with these laws, the Commission may not lawfully adopt the proposed actions and should therefore reject them.

Please distribute this Comment to all members of the Commission. Please also place me on all notice lists and provide advance notice of any actions on the above-described Project and its environmental review. 


Mary Miles

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