One, the slope of the property. I hired a surveyor to measure the slope of the property. I hired a surveyor to measure the slope of the property. Its 12 . Additionally, the soil testing. D. P. H. Has looked at this a number, a myriad of ways. The i hired a professional independent soil Testing Company to come out and test the soil in the exact locations in which were doing excavation, so theres a specific reason why they took those samples there because its the area of where the garage expansion is occurring, and its the exact right spot. Theres no disputing. Also, i want to say i do care greatly about his house. Its quite emotional for me to listen to the testimony and feedback from other neighbors. Like, i in no way it bothers me that theyre upset. I wish we could sit down at a table and talk about this and say okay, what more can i do . Like i told you, i spent 1 million in three years and paying the City Planners and staff and city fees and all this. Theres just no more level of review that could be done. But what i do want to close with is i greetlatly, greatly e you approve this project because its still the right thing to do. Im still very much interested in a meeting with these neighbors. I know its hard to overcome the emotions, but after this, im still willing to discuss this with them. Even if you approve it tonight, it does not mean im not going to discuss this with them and continue to try to alleviate their concerns. I go through this a lot, and we always address their concerns. Thank you. President melgar thank you. Okay. Thats it. Commissioners . Clerk so again, commissioners, ill just remind you to take up the appeal of the preliminary mitigated declaration first. If you decide to uphold that, then i would discuss the project. President melgar okay. Okay. So i will start with a question to miss gibson and also to our City Attorney about the action that the board of supervisors took twice on the ceqa and the development. It has been said that action supersedes the action that the Planning Commission took. Does it also mean that it would supersede any action that we would take . President melgar, lisa gibson, Environmental Review officer. The board of supervisors upheld the appeal of a categorical exemption for this project that we issued. In their findings, they indicated that their upholding of the appeal was based on their determination that there was evidence in the record that there could be a potential for a significant effect related to Hazardous Materials and Historic Resources, and they directed that the Planning Department go back and conduct further analysis. The boards findings which were authored by the City Attorney staff based on the direction of the board did not specify that an Environmental Impact report was required, and we specifically consulted with the deputy City Attorneys to ensure that, in fact, we understood the direction from the board, and we were we understood that we needed to conduct further analysis. So ultimately, we prepared an initial study and ultimately, we determined that the project could result in a significant environmental effect, but that the significant impacts of the project could be lessened to below a significant level. Theres a lot of detail of actions in between, but i think those are the key facts. So it is incorrect, the assertions made, that the board required preparation of an Environmental Impact report. That is a misunderstanding of the direction of the board of supervisors, and i will then pass this onto the City Attorney to add to that if necessary. President melgar so can i just ask, you know, a further clarification question because this happened twice. So what happened between number one and number two, and what further direction did the board give after number two . Again, lisa gibson, Environmental Review officer. So what occurred was that after the initial action by the board where the appeal of the cadx was upheld, we conducted a review of the findings by the board that directed us to go back to the drawing board. And we found that the facts that were cited were based basically on erroneous and misleading information that was presented at the hearing and that was not submitted prior to the hearing . And it was, you know, in the moment of the testimony, which was very emotional and other things. These facts were cited, and so we went back, and we looked at the facts and the evidence, and we found that it was erroneous that the assertions that the department of Public Health had found there to be a risk of hazards, that wasnt that was based on a stamp that was used by d. P. H. That was misleading at that point. After conducting further review, we did issue a categorical exemption, correcting the facts, and stating the basis for our finding that in fact the project still was appropriately exempt. We ultimately rescinded that because it did become clear that the board intended for us to do an initial study, and that is what ultimately we did. We did the initial study. So there was some process to get there, but thats what weve done. Weve done our review. Weve done a very thorough analysis, and weve had the experts with the credentials and the experiences to do the work. And i just want to make clear that these statements to the contrary about the lack of experience by our staff are really false. And i want to make it clear that we have an abundance of very qualified staff, and our work was supplemented by consultants who do have the credentials to support our findings. And just want to note that, again, i think there was some incomplete statements made that were pointed out by some that the negative the preliminary neg dec left out some stuff. I think its important that we mitigate it to a significant level. Okay. Can i clarify, there was not two decisions by the board, there was one decision by the board. President melgar okay. Commissioner fung, did you have a question . Commissioner fung along the same lines. [inaudible] commissioner fung certain issues that and the appellant in their presentation on this wasnt quite direct in terms of how they were attacking the the pmnd in the following sense. Those items that were initially thought to be significant by them, but for some were reduced to not being significant because they were basically dismissed, such as the testing and the actions of the d. P. H. Some were mitigated, which was as an example, the issue of the Foundation Work and the collapse potential has been mitigated because of the issuance of a geotechnical report. Is that a different way of phrasing that . That is a different way of phrasing it, commissioner, and youre correct that we did find that for certain concerns that were identified by the board of supervisors, that, in fact, there was no substantial evidence of a fair argument that there is a significant impact. And one of those areas is the Hazardous Materials. The subsurface contamination was studied, and the department of Public Health found that based on testing, there is no subsurface contamination in the area where excavation is proposed. President melgar Commission Commissioner moore . Commissioner moore id like to hear your argument of what you understood from the board of supervisors and the instructions. Id also like for you to comment on what the department considers mitigated circumstances are. Thank you. Id like to start with, what did the board of supervisors really hold . According to ms. Gibson, they said go back and study it further. No, they said, the project the board finds substantial evidence that the project may have significant adverse impacts on Hazardous Materials and Structural Integrity. Thats their finding. They considered the evidence. Now she may say, we dont think they considered it right, there was late evidence, whatever, but thats the finding. Its a final finding. If they didnt like the finding, mr. Durkin should have taken a writ of mandate and challenged the finding, but he didnt. Instead, he went back. Now miss gibson said they went back to the board of superviso supervisors they went back, which the board of supervisors forbade. Staff, for some reason, wants to hold this to an exemption. They keep saying well, it really want well, we really want it to be exempt, but we did a neg dec. The evidence is, if there is a fair argument that there are Environmental Impacts, and if there are, an environmental report is required. When theres a disagreement among experts, then e. I. R. Is required. We have matthew hagerman, certified geologist, whos looked at the data and said theres still contamination at the site. Remember, the mitigation measure here is if there is substantial earth movement, then the the developer is supposed to come up with a plan. Thats not how ceqa works. You dont wait until Humpty Dumpty falls off the wall to put him together again. Commissioner moore my question pertains to the last part of what youre saying, and that is what the core of what the supervisors concerns are, partially because we have real threats on Historic Resources of this kind and incidents where things happen which nobody anticipated. All of a sudden, the thing is gone. Too bad, we didnt know. So the mitigating circumstances, while they may be correct as far as thinking goes, the reality of what happens when youre in the field, and all of a sudden, the soils slide, whoops, the thing is gone. And i see you nod and appreciate that you do, because theres a reality to Wishful Thinking about what you would do, and when it starts to slide, its quicksand. Youre done. Its kind of being on a ski slope and an avalanche happens. And i want to emphasize, the pmnd says that there is a significant risk to the Structural Integrity of the coxhead house, and the mitigation measure is if the soil moves, well figure out what to do at that time. Thats that violates ceqa, and its simply inadequate. President melgar thank you, mr. Drury. Commissioner diamond . Commissioner diamond could the City Attorney please respond to the legal arguments made by mr. Drury . Sure. In no particular order, the the the department was following the direction the department was authorized to step up the Environmental Review following the cadx. An initial study would have been the next step, and finding Environmental Impacts. The mitigated neg dec could have been an appropriate action if the Commission Decides that the mitigation measures are sufficient. It is true that the Legal Standard is whether or not there is substantial evidence to support a fair argument, but substantial evidence must be based on evidence in the record. And so it is up to this commission to determine whether the opinions and statements by the appellants are, in fact, based on evidence in the record. May i a. Commissioner diamond may i ask a follow up question . President melgar yes, please. Commissioner diamond mr. Drury claimed that the mitigation measure is if there is a problem, well address that. Thank you, commissioner diamond because youre raising an important point that i do think needs to be made here. I understand why the commissioners and others who would be concerned when they hear the characterization of the mitigation measure that was presented by the appellant, which does seem to suggest that the mitigation is to do something if something bad happens. That is in fact not what the mitigation measure is, and i think its really important id like to ask our staff to come to the if i can please just present this mitigation in full because it is much more proactive than described, and theres a lot of work that would be done before any construction would ensue. Yes. Can i have the screen . Im putting the mitigation measure on the screen. It says that there does have to before the project is approved by d. B. I. , the project sponsor has it will be for the ongoing monitoring coordination during the review of the structural plans by the Building Department with oversight by planning, just making sure that they do what theyre supposed to do before they approve the structural plans. So and one of the things that it says is there has to be at the beginning of d. B. I. S review, they have to identify milestones for review. When a field report or memorandum is required to be submitted to the planning and the Building Department, this is before any construction actually begins, and then they will at the beginning of this process, they will also identify what other milestones are required during construction. And then, yeah, on the screen is the actual mitigation measure, so yes, there will be review before any earth is moved. Thats the mitigation measure does take place before. President melgar is that it, commissioner diamond . Commissioner diamond is that a standard condition or did you develop that precisely to deal with the particular problem that arose . Well, there are standard requirement that d. B. I. Requires. Thats their purview, but because of the need for oversight, we decided to also have our input in this process, too, and to put it in as a mitigation measure, and the main difference is the Planning Department is requesting that we see these reports, as well, even though d. B. I. Are the experts on how to do it, we are just going to make sure that theyre doing what theyre supposed to do, because that seemed to be the extra level of assurance that was needed for this project. President melgar okay. Thank you. Did you want to Say Something else, miss gibson . Okay. Commissioner fung . Commissioner fung you know, just to expand on that a little bit, if i may, the question that is being raised is whether the Environmental Review statements, whether its a mitigation or whether its analysis leads to an actionable item in terms of construction, and thats not necessarily the case because the Building Department has the ultimate responsibility for not only analysis of the slope and what level of analysis they have to provide structurally with respect to the slope, but also fragile, if you will, unreinforced structures adjacent to them, and Historical Structures adjacent to them. So the fact is that this mitigation leads one to have subsequent actions by the Building Department, but it provides some level of review by the Planning Department to ensure that the mitigations are going forth in a reasonable manner. That means that the ultimate responsibility for whats happening are things that i think both the Building Department will be very careful about, but also, the the project sponsor needs to be extremely careful about. President melgar commissioner moore . Commissioner moore this is a very difficult thing to say, but i think the notice of the disconnect between the appellant and the d. R. Requester is very concerning to me where there were preagreements, particularly guiding structural issues that were arranged just in order to facilitate a commonlybased discussion on what what was achieved here, and that is missing. So were getting into this very complicated situation with the with the mitigated negative declaration and its appeal without really having addressed that. In the end, it is really the action and integrity of those people that are doing it. The one concern i have, having seen the property about two months ago or Something Like that, that the adjoining building, the one which is in front of us for approval, has shows significant signs of intentional neglect, which is of great concern to me. And even if there is a remodel or a partial demolition, that particular action sends a signal to me that somebody is setting this property up for ultimately being in a demolition, and we ourselves have been in a number of very painful cases in the last year or two where we had exactly that type of a situation. And again, there is a difficulty of the definition what constitutes a demolition. However, when i say intentional neglect, the difference between d. B. I. S definition and the departments definition of demolition doesnt matter, because what i see is someone trying to degrade a property with purpose. And that is my concern when im trying to start to dig deeper on what are the mitigating circumstances and how they ultimately affect people should something happen. So that is where i am, and i am greatly disturbed because our responsibility to care and be mindful of how we create a slate for an approval of a remodel, that is one thing. That is our everythursday responsibility. However, what we are ultimately fully responsible what happened to the adjoining building, that is where my concerns lie. President melgar thank you. Commissioner diamond . Commissioner diamond what im struggling with is what the Actual Foundation is going to look like, and the structural plans, and those arent done until later in the process. And youre saying that you and the Planning Department will be reviewing those. Will they be done before the site permit is issued, and is there an opportunity to appeal if people feel like it is improper, if people dont feel it is adequately addressing their concerns. In general, the typical building review is that the site permit has to be issued before theyll submit a structural plan because b basically, a site permit is this is what we want to do, this is how we want to do it. You know, again, this is the Building Departments not our office. Commissioner fung let me clarify, please. The site permit is issued, provides the overall entitlement. Yet. Commissioner fung addenda, which represents the structural work and other work afterwards, is not appealable. Commissioner diamond so theres no opportunity for the appellant, once they see the structural plans will they get the opportunity to see the structural plans, and if they dont agree with them, is there a remedy . Commissioner diamond could we impose that condition through d. R. . We have the ability to do that . President melgar so i would really like to hear that from the City Attorney whether thats possible. Having sat on the Building Inspection Commission five years, i know that process, the only remedy if there is a violation to what the plans that are submitted would be to have an n. O. V. And then have a directors hearing. That would be the resource, but by that time, if theres something going on with a foundation of a neighboring house and, you know, its a historic resource, thats too late. So that would be the worry. You know, that process is completely different, and we wouldnt have any jurisdiction over it. So is the question whether or not the commission can require the project sponsor to share the addenda with the neighbors as part of the discretionary review approval . President melgar yes. I my your president melgar, your statements correct, and thats my understanding, is that once a site permits issued, theres no appeal. However, if there were conditions that were not being complied with, a notice of violation would be the appropriate mechanism. Im not familiar enough with the Building Departments process, but it seems plausible that we could require additional coordination between the project sponsor and the d. R. Requester as it relates to the foundation . President melgar okay. I saw mr. Tunney piping up. Did you want to Say Something specific to the process, a d. B. I. , if there is an addenda submitted . First of all, we would be amenable to a condition that we would provide plans for review to the d. R. Requester. If we made them available to the Planning Department, they would be available to anybody in the public. And on that review, there is the opportunity to file a complaint with d. B. I. If theres any allegation of a violation of code, and then, that code violation is examined, and theres a public hearing with the Building Inspection Commission. So all of that would be reviewed in public. And then, even those decisions can be litigated afterwards. So i think theres ample review. And were willing to agree to conditions to add additional review. President melgar okay. Thank you, mr. Tunney. Commissioner diamond . Commissioner fung, did you already speak . Okay. Commissioner johnson. Commissioner johnson so just a couple of things. One question that i feel like hasnt been answered yet is this question of when theres a disagreement between experts, what the protocol is . If you could speak to that, and then ill have a statement after. So typically, when theres a disagreement between experts, the substantial evidence test does not weigh the experts opinion. In this instance, the commission is charged with looking for whether or not there is a fair argument supported by substantial evidence of a potentially adverse impact. So we wouldnt be looking at statements by experts from the project sponsor versus the project or the d. R. Requester or appellant, but i the standard is not its a slightly nuanced standard because theres a requirement that there be the whole record. And courts have interpreted that to mean that an appellant cannot rely upon speculation or conclusory statements unsupported by the record. Commissioner johnson thank you. One of the concerns i have is we often have neighbors coming in, d. R. Ing their neighbors work, saying this will cause damage to my foundation, and this is why i want you not to approve this project. And often our response after reviewing the project, which we still havent even gotten a chance to do, is to say, well, there is a process for the review and the mitigation of what might happen to those things. And so i just one concern that i have is were talking about what might happen. Granted, that this is a historic resource, and everybody cares about this house, and the family thats living in it and making sure, you know and this neighborhood, frankly, and yet were