There is a clear pattern of BCDC staff making it seem in minutes, agendas and recommendations that the project has been found to be in compliance with the Bay Plan by the Design Review Board (DRB). There was no such finding:
• First DRB Meeting – Staff proclaimed that the DRB approved the project. The minutes they wrote after the first DRB meeting states that DRB “approval was based on…conformance with Bay Plan Policies on Public Access, Recreation, Appearance, Design, and Scenic Views….” Yet the board’s discussion (covered in the same minutes) indicates no such approval. In fact, one DRB member said “the park was ‘closing itself off from the Embarcadero’” and “shuts off the Embarcadero from the Bay.” Another said “a 17-foot building that is very close to the curb is ‘pretty big.’” (It is actually higher than 17-feet at the curb.) A third DRB member said “a lot of the (park) area is planted with shrubs and relatively inaccessible.” Citizen comments were all negative. The relatively few positive comments by DRB members tended to be generalizations and served to preface concerns. There was no discussion, finding or vote indicating the DRB feels the project is in conformance with the Bay Plan (and state law).
• Second DRB Meeting – The agenda for this meeting ignored DRB concerns from the first meeting about the height and size of the restaurants (Bay Plan issues). It referenced the DRB’s recommendation that the park be more open to the Embarcadero and city, but staff defended the developers’ secluded design (in the agenda!).
The agenda states that the DRB should advise the commission on access issues (compliance with the Bay Plan), yet the minutes indicate internal BCDC confusion and dissension on this: The DRB chair “stated that until the Board hears otherwise from staff, that the Board should assume that this project meets the intent of the public policies. In response, Mr. McAdam stated that the Board’s role is to give the Commission advice as to whether the project provides maximum feasible public access to the Bay, which includes physical public assess to and along the waterfront and visual access from public spaces.” The matter was then dropped. No such discussion took place and the DRB provided no advice about conformance with the Bay Plan and other policies.
Most citizen comments were negative once again. The chair of the Rincon Park Subcommittee (of the Rincon Point-South Beach CAC), for example, reflected public opinion when she testified “that the restaurant buildings were too tall and should not exceed 17 feet.”
The DRB continued to express concerns about visual and physical access. One member said “the restaurants fail to provide maximum feasible public access.” Another said “he shared other’s concerns that some views would be blocked from across the street.” A third “asked whether the restaurant had used the land in the best way to open views to the water.” These concerns were not addressed.
• Third DRB Meeting – Once again the Project Summary ignores the major access issues and states that “most of the design recommendations of the Board have been integrated into the park design.” It incorrectly says that the only two remaining issues have to do with facilities for children and “brown bag” seating. The major access issues outstanding from the last DRB meeting are ignored in the summary.
An attorney warned the DRB of major inconsistencies between the design and planning requirements concerning visual access, the 17-foot height requirement, second stories, and open space. An architect testified that drawings provided DRB members did not show the second stories. Citizen comment was all negative. The chair of the CAC’s Rincon Park Subcommittee once again reflected conventional wisdom about commercial buildings in parks when she stated “there should not be any buildings on the site.” The DRB discussed secondary issues and again withheld any endorsement of the project conforming to overall Bay Plan requirements.
• Fourth DRB Meeting – Again, the project summary incorrectly states that only “a few outstanding issues remain” and tries to limit discussion to items like restrooms. Major overall view issues are limited to the narrow alley between the two restaurants. Despite the comments at previous DRB meetings, this agenda says the only remaining public access issue has to do with “tables and chairs in the piazza.” Because of the way the agenda was written, members of the public did not attend. There was no citizen comment. There was still no statement by DRB members that the project conforms with the Bay Plan and state law.
• The Commission Meeting – The BCDC staff recommendation makes it clear that the commission can approve the project only if it is consistent with the McAteer-Petris Act, the Bay Plan, the California Environmental Quality Act, and the Total Design Plan. They do not mention in their recommendation that an attorney wrote (and testified) that the project is NOT consistent with any of these. The DRB never addressed the attorney’s findings, and the DRB never found that the project complies with the McAteer-Petris Act, the Bay Plan, CEQA, or the Total Design Plan. Thus, the staff recommendation is wildly misleading when it sums up the DRB’s four meetings by stating the DRB “praised the access and amenities provided by the proposed park.” It implies that the DRB’s only concern has to do with restrooms. That ignores a long list of serious issues that DRB members expressed. Issues that were never resolved.
The commission was told by BCDC staff at the meeting that the DRB “came to the conclusion that the 7 foot knolls were appropriate for the site.” In fact, there is no evidence of any such conclusion by the board.
This deception continues. On November 22, 2004, the BCDC executive director wrote to the Rincon Tenants Association to defend staff’s representation of DRB discussions. He stated that the minutes “…indicate that the DRB believed that the ‘mounds’ … would be ‘appropriate’ and ’in scale’ for the park.” A quick check of the minutes shows that to actually be the comment of only one single DRB member: “Mr. Gatzke said that he liked the height of the berms. He said that they were ‘appropriate’ and ‘in scale.’” The DRB made no such finding and expressed concern about the project on numerous occasions.