Text of a letter concerning Rincon Park that BCDC has ignored for six years. Read the first paragraph, headings and conclusion for a quick overview:

Lawyers
WASHBURN BRISCOE & MCCARTHY
A Professional Corporation

April 5, 2000

VIA HAND DELIVERY

Ms. Leslie Lacko
Coastal Program Analyst
San Francisco Bay Conservation and Development Commission
30 Van Ness Avenue, Suite 2011
San Francisco, California 94102

Re: Port of San Francisco, San Francisco Redevelopment Agency, Gap, Inc., Wilson Cornerstone; Nice Ventures, Inc.; Rincon Park and Rincon Restaurants

Dear Ms. Lacko:

This firm represents RUI One Corp., owned by Restaurants Unlimited, Inc., the owner and operator of Palomino, a full service restaurant located in the first floor of the Hills Plaza in San Francisco. Palomino has recently become aware of a proposal by the Port of San Francisco and Redevelopment Agencies to develop two restaurants across The Embarcadero and directly in front of Hills Plaza in a portion of Rincon Park. Because the restaurants fall within the l 00-foot shoreline band, BCDC has jurisdiction and is obligated by law to require the project to provide "maximum feasible public access, consistent with the project." (Government Code 66602.) The project is also required to comply with specific San Francisco Bay Plan policies concerning visual access to the Bay. (Government Code 66603.) Our review of the project design as it is currently proposed leads to the conclusion that the project does not provide maximum feasible public access consistent with the project, and is not consistent with several critical Bay Plan policies. A redesign of the project could minimize the visual impact of the project substantially and could avoid inconsistencies with Bay Plan policies.

PROJECT DESCRIPTION

The project involves the construction of approximately 85,800 square feet of public park and two restaurants totaling 11,700 square feet, which are connected by an 8,000 square foot open air piazza. The two full-service restaurants would be from 17 to 22 feet high and located on the southwestern portion of the park. The restaurants as currently designed are proposed to be two stories. It is unclear from what grade height it will be measured. We think it is obvious that if the restaurants are allowed at all, any finished height must be measured from existing grades.

The restaurant project originally had been planned for the portion of the park north of Folsom Street and to be limited to 8,000 square feet. In 1995, the Gap entered into a disposition and development agreement ("DDA") with the Redevelopment Agency for construction of the Gap's headquarters. As part of the DDA, the Gap agreed to finance construction of the Park. At the same time, the Redevelopment Agency agreed to move the restaurant south of Folsom Street (and, therefore, no longer in front of the Gap building) and to increase it in size from 8,000 square feet to 12,000 square feet.

The Design Review Board has already expressed concerns about the restaurants' viewblocking characteristics in its present location. We share those concerns.

THE RESTAURANT SIZE, HEIGHT AND LOCATION IS INCONSISTENT WITH BAY PLAN POLICIES ON RECREATION

BCDC is obligated by law to review projects for consistency with the Bay Plan, "a comprehensive and enforceable plan for the conservation of the . . . bay and the development of its shoreline." (Government Code 66603.) Projects inconsistent with the Bay Plan may not be approved. (Government Code b6602-4.) The Bay Plan policies on Recreation contain several applicable restrictions on the development of shoreline parks within BCDC's jurisdiction. These policies are designed to maximize useable public open space and visual access to the Bay. Policy No. 5 states that in shoreline parks, "limited commercial recreation facilities such as small restaurants should be permitted within waterfront parks, provided they are clearly incidental to the park use, are in keeping with the basic character of the park, and do not obstruct public access to and enjoyment of the Bay."

In this case, the two restaurants that are being proposed are neither small nor incidental to the park use. Rather, they are large, centrally located within the southern portion of the park, and clearly obstruct visual public access to and enjoyment of the Bay. Further, the location of the restaurants in the central southern portion of the park leaves a remnant triangle south of the restaurant structures, consisting of a small lawn, a landscape planter and seating. Due to this remnant's small size, distance from the larger park, and proximity to a private restaurant, the public will not perceive this area as usable public space. For the restaurants to be consistent with this policy, their size must be significantly reduced. 'Relocating the restaurant north of Folsom Street will also allow the park space to be closer to the people who will use it most, the residents of the area, and will allow more efficient use of the park space. At the current time, the restaurants are neither "small" nor "incidental" to the park use and are, therefore, in direct conflict with Bay Plan Recreation Policy No. 5.

THE PROJECT IS NOT CONSISTENT WITH BAY PLAN POLICIES ON PUBLIC ACCESS

The placement of two, two-story restaurants in one of the few places along the San Francisco shoreline where public views of the Bay are currently accessible is not consistent with the Public Access policies of the Bay Plan. The Bay Plan policies on Public Access provides that "visual access to the Bay is a critical part of public access." The Bay Plan recognizes that "although opportunities for views of the Bay from public access areas have increased since the Bay Plan was adopted in 1968, there is still a significant number of shoreline areas where there exists little or no visual access to the Bay." In a staff report to the Design Review Board members dated October 7, 1999, BCDC staff point out that the park is located in one of the few sites where piers do not already block views of San Francisco Bay. This stretch of shoreline, , from the Fire Building to the south, to the Agricultural Building to the north, has been slated for preservation as an open space promenade. The development of two, two-story restaurants will block an important part of this remaining view of the Bay from The Embarcadero and is inconsistent with Bay Plan policies on public access.

THE PROJECT IS NOT CONSISTENT WITH BAY PLAN POLICIES ON APPEARANCE, DESIGN AND SCENIC VIEWS

The project is not consistent with Bay Plan Policies on Appearance, Design and Scenic Views. These policies state, in part, "The appearance of the Bay and people's enjoyment of it as a scenic resource contribute to the enjoyment of daily life in the Bay Area." The Plan continues:

"As a special kind of open space, the Bay acts as both the unifying element of the entire Bay Region, and as a physical divider of its parts. The wide surface of the Bay and the distant vistas it affords offer relief from the crowded, often chaotic urbanized scene and help to create a sense of psychological well being. Probably the most widely enjoyed use of the Bay is simply viewing it from the shoreline from the water and from afar. For example, a Bay view can add substantially to the value of a home, office or apartment building in San Francisco and other bayside communities."

Policy No. 2 of the Appearance Design and Scenic Views chapter of the Bay Plan states, "All bayfront development should be designed to enhance the pleasure of the user or viewer of the Bay. Maximum effort should be made to provide, enhance or preserve views of the Bay and the shoreline, especially from public areas, from the Bay itself, and from the opposite shore." (Emphasis added.) Policy No. 8 states in part, "Shoreline developments should be built in clusters, leaving open area around them, to permit more frequent views of the Bay." Policy No.. 14 states in part that "views of the Bay from vista points, from roads and from other areas should be maintained by appropriate arrangements and heights of all developments and landscaping between the view areas and the water. In this regard, particular attention should be given to all waterfront locations, areas below vista points, and areas along roads that provide good views of the Bay for travelers. . ." (Emphasis added.)

The project as proposed directly conflicts with these policies. In particular, maximum efforts have not been made to provide, enhance or preserve existing views of the Bay. (See Exhibits B and C showing view blockage by project from public vantage points.) Important public views of the Bay will be fully obscured by the proposed project. For example, existing views of the Bay from the platform of the new Muni stop, will be substantially obscured by the proposed restaurants. Views by pedestrians and motorists travelling both northbound and southbound on The Embarcadero will also be blocked by the proposed restaurants. Views of the Bay from the existing public walkway around the perimeter of the Hills Plaza building and establishments open to the public in Hills Plaza (Pinnacle Fitness, Palomino and Gordon Biersch) will also be blocked: As the Bay Plan recognizes, these views are a valuable public resource that must be protected, especially since the view of the Bay at this location is one of the last remaining open views along The Embarcadero. Significantly reducing the height and size of both buildings and rotating the northern building so that it is more perpendicular rather than parallel to The Embarcadero would preserve views form the newly installed Muni stop, a - significant location for public views of the Bay for residents and tourists alike. It would also place the buildings closer to already more densely developed areas. Significantly reducing the height and footprint of the restaurants is also an obvious way to maximize the precious public open space to be provided by Rincon Park. There is simply no public need to dwarf the remaining open space in the park with these two large structures. No public purpose is served by having these restaurants loom so large. Smaller restaurants with outdoor dining areas north of Folsom Street would serve equally well to provide the "24-hour presence" in the park explained by the Redevelopment Agency to be necessary.

THE PROJECT IS NOT CONSISTENT WITH THE TOTAL DESIGN PLAN FOR THE SAN FRANCISCO WATERFRONT

The project as proposed is inconsistent with BCDC's Total Design Plan. BCDC has adopted the Total Design Plan for the San Francisco Waterfront, Piers 7 through 24, as an Amendment to the San Francisco Bay Plan. The Total Design Plan governs the planning and development of the San Francisco Waterfront in the area between Piers 7 and 24, which includes Rincon Park. It deals with the configuration of piers and other fill, the approximate location, amount, height and bulk of proposed uses, the location and design of parks, open space, public access areas, and view corridors, as well as other issues. The Total Design Plan states that "detailed designs prepared for specific projects shall be in accord with these guidelines and program." (Total Design Plan at p. 3, emphasis added.) Second, Policy No. l under the category of Open Space, Public Recreation and Public Access states as follows: "Maintain and enhance existing grade level view corridors to the Bay, particularly from Broadway and Folsom Streets, and create new view corridors at Pacific and Howard Streets." As stated, this policy calls for the maintenance of existing grade level views to the bay and does not permit new development which blocks those views.

First and foremost, the area in which the park is proposed to be developed is designated as "Open Space" under the Total Design Plan in which no development is allowed. Thus, in the policies on Building Design on page 5 of the Total Design Plan, BCDC has adapted a policy "to restrict development of the height and bulk district on Figure 2, page 5." Any restaurant development in this area would, therefore, be in direct conflict with this Plan since restaurant use is not open space.

Third, the Total Design Plan envisions "a promenade between the Agricultural Building and Pier 24." The goal is to "maintain visual continuity along the water and create a variety of water/edge experiences." The Plan also includes "landscaping the promenade and where it will not block view corridors plant a double row of large trees to define 'activities, frame views and buffer winds, provide appropriate street furniture to include wind protected seating areas and ` pedestrian scale lighting." No mention whatsoever is made of the construction of two, two-story restaurants in this area. Rather, the Plan contemplates a public walking area with landscaping, street trees and street furniture. Restaurants are contemplated by the Plan only for the area directly south of Rincon Park, at Pier 24.

The proposed project's inconsistency with the Total Design Plan is irreconcilable. As such, the project cannot currently be approved.

COMPLIANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

A permit from the Bay Conservation and Development Commission for the development of the restaurants is a discretionary act requiring environmental review under CEQA. As a responsible agency, BCDC may rely on the environmental review documents prepared by the lead agency for this project, which in this case is alternatively the Redevelopment Agency or the Port of San Francisco (which also happens to be the applicant). Both agencies have prepared , - EIRs covering the development of the Park, but none of these EIRs analyze or disclose the view impacts- of the project.

First, the development of Rincon Park was analyzed in an EIR prepared by the Redevelopment Agency for the overall Rincon Park redevelopment area in 1980. That EIR was supplemented by the Redevelopment Agency in 1991. The document discusses neither the proposed restaurants' impacts on Bay views nor the inconsistency of the proposal with the Total Design Plan.

In 1995, The Redevelopment Agency adopted Resolution No. 7-95 granting a variance to the Redevelopment Plan. The "variance" allowed the relocation of the restaurant from the northern end of the park to the southern end of the park and expanded the square footage area allowed for the restaurants from 12,000 square feet to 20,000 square feet. The Redevelopment Agency also adopted Resolution No. 6-95 containing environmental findings pursuant to CEQA and a statement of overriding considerations. Resolution No. 6-95 states that no additional environmental review would be required for the variance. However, these findings were based on the understanding that the restaurant would be one story rather than two stories, and would be limited to a single restaurant rather than two restaurants. Thus, page 5 of Resolution No. 6-95 states as follows: "Subject to future design review and approvals, the plan and scope of development would permit the construction of the 12,000 square foot, one story restaurant on 20,000 square feet within the park site." (Emphasis added. Redevelopment Agency Resolution No. 6-95, January 10, 1995, p. 5, P 2(b).) No view studies were conducted by the Redevelopment Agency at that time to identify whether the change in location or the increase in size of the restaurants (even at one story) would have any impact on public or private views. The EIR prepared for the San Francisco Waterfront Plan by the Port of San Francisco is similarly silent as to the view-blocking impact of the proposed restaurants.

Clearly, the existing CEQA review is not adequate for its purposes of determining the project's 'impacts on views. It contains no analysis whatsoever on the view-blocking characteristics of the project. Moreover, the project pending before BCDC will create even more view blockage than was anticipated by the Redevelopment Agency in 1995 when it adopted Resolution No. 6-95. Instead of a one-story restaurant located at the very most southern portion of the redevelopment area (i.e., next to the existing Fire Building), the proposed project consists of two, two-story restaurants centrally located in the middle of the southern portion of the park, leaving an entirely unusable "remnant" of open space to the south and substantially blocking views from the Bay from the Muni platform, the sidewalk in front of Hills Plaza, the public pedestrian walkway in front of the Palomino restaurant, as well as views from the interior of existing businesses located in Hills Plaza. These view impacts are not simply private.. They constitute existing and important public views. Because the view impacts of the project as it is currently proposed have not been adequately studied under CEQA, BCDC cannot approve the proposed project unless it either prepares an environmental impact report to assess the visual impacts of the project, or significantly modifies the project to mitigate for the current view blockage that would be created.

CONCLUSION

The restaurant projects will have a serious adverse impact on both public and private views. The project as currently proposed is not consistent with numerous applicable Bay Plan policies and is not consistent with BCDC's adopted Total Design Plan. No CEQA review has been done to analyze the project's significant and adverse view impacts. For all of these reasons, BCDC may not approve this project as proposed.

Very truly yours,

Anne E. Mudge

AEM;raa

Enclosures

cc:
Amy Neches, Redevelopment Agency (with encls.)
Kari Kilstrom, Port of San Francisco (with encls.)
Larry Vollintine, Esq. (w/out encls.)
James Welch (w/out encls.)